Citation Nr: 0000032 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 98-17 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an increased evaluation for an anxiety disorder, currently evaluated as 50 percent disabling. 2. Entitlement to an increased (compensable) evaluation for a duodenal ulcer. ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from November 1953 to August 1954. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1997 rating decision issues by the San Juan, Puerto Rico, Department of Veterans Affairs (VA), Regional Office (RO), which denied increased evaluations for the veteran's service-connected anxiety disorder and duodenal ulcer. REMAND Initially, the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Here, the veteran's claims are well grounded because he has claimed that the disabilities have worsened since they were last rated; medical evidence has been submitted which the veteran's believes supports his contentions. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well-grounded claim for an increased rating). VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999). Notwithstanding the efforts undertaken by the RO to prepare this case for appellate review, the Board finds that a remand is in order. The Board finds that additional evidentiary development is indicated by review of the claims file. The record reflects that the appellant has been receiving benefits from the Social Security Administration (SSA). Records from that agency, medical and otherwise, must be obtained by the RO. The requisition and consideration of all available medical records that are clearly relevant to an issue on appeal is necessary for the adjudication of the case. Decisions of the Board must be based on all of the evidence that is known to be available. 38 U.S.C.A. §§ 5103(a), 7104(a) (West 1991); see also Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). The section 5103(a) assistance obligation is particularly applicable to records which are known to be in the possession of the Federal Government, such as SSA records. See Counts v. Brown, 6 Vet. App. 473 (1994); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (in deciding a claim for an increased rating, SSA's decision is "pertinent" to a determination of a veteran's ability to engage in substantially gainful employment, quoting Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992)). Additionally, the appellant was last examined for compensation purposes in August 1997. The record reflects that the appellant has been treated for an anxiety disorder and duodenal ulcer disorder since that time. Therefore, the appellant merits an additional and more up-to-date medical evaluation. The duty to assist includes the duty to develop the pertinent facts by conducting a current and thorough medical examination. See 38 C.F.R. § 3.159 (1998); see also Waddell v. Brown, 5 Vet. App. 454 (1993). On remand, the RO should have the appellant examined for compensation purposes to address the extent of his disability based on the anxiety disorder and the duodenal ulcer disorder. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The veteran should be requested to identify all sources of recent treatment received for the disabilities at issue, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. Copies of the medical records from all sources he identifies, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. The RO should contact the SSA for the purpose of obtaining any records from that agency which pertain to an award of disability benefits to the appellant. The Board is particularly interested in obtaining the medical records which correspond to the award of disability benefits. The RO should obtain copies of award letters/notices, administrative/appellate decisions, hearing transcripts, if applicable, and all medical records relied upon concerning claims/appeals filed by the appellant for SSA benefits. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. All attempts to obtain records which are ultimately unsuccessful should be documented in the claims folder. 3. Next the RO should schedule the appellant for a comprehensive VA psychiatric examination. The appellant's claims folder and a copy of this remand must be furnished to the examiner for review prior to examination, and the examiner should be asked to indicate in the examination report whether he or she has reviewed the claims folder. All appropriate diagnostic testing deemed necessary to render clinically-supported diagnoses and assessments of functioning/employability should be administered. In this regard, the appellant's anxiety disorder should be evaluated for the specific purpose of assessing the relative degree of impairment, in light of his recorded medical history. Also, an opinion addressing the relative degree of impairment resulting from the anxiety disorder is requested. In that this evaluation is to be conducted for compensation rather than for treatment purposes, the examiner is advised to address the functional impairment of the appellant's disability in connection with the criteria set forth by the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. To this end, the examiner should address the degree of severity and medical findings which specifically correspond to the criteria listed in the Rating Schedule for anxiety disorders (Diagnostic Code 9413). The examination should address all manifestations of related pathology found to be present. All pertinent symptomatology and findings should be reported in detail. The report of examination, including the reports of all completed tests or special studies should thereafter be associated with the appellant's claims folder. 4. Next, the RO should schedule the appellant for a comprehensive VA examination to determine the extent of the appellant's duodenal ulcer disorder. The appellant's claims folder and a copy of this remand must be furnished to the examiner for review prior to examination, and the examiner should be asked to indicate in the examination report whether he or she has reviewed the claims folder. All appropriate diagnostic testing deemed necessary to render clinically-supported diagnoses and assessments of impairment should be administered. In this regard, the appellant's duodenal ulcer should be evaluated for the specific purpose of assessing the relative degree of impairment, in light of his recorded medical history. Also, an opinion addressing the relative degree of impairment resulting from the ulcer is requested. In that this evaluation is to be conducted for compensation rather than for treatment purposes, the examiner is advised to address the functional impairment of the appellant's disability in connection with the criteria set forth by the Rating Schedule. To this end, the examiner should address the degree of severity and medical findings which specifically correspond to the criteria listed in the Rating Schedule for duodenal ulcers (Diagnostic Code 7305). The examination should address all manifestations of related pathology found to be present. All pertinent symptomatology and findings should be reported in detail. The report of examination, including the reports of all completed tests or special studies should thereafter be associated with the appellant's claims folder. 5. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 6. After completion of the above, the RO should readjudicate the issues on appeal, with consideration given to all of the evidence of record, including all additional medical evidence obtained by the RO pursuant to this remand. In adjudicating the claims the RO should take into consideration all applicable legal provisions and should consider carefully and with heighten mindfulness the benefit of the doubt rule. 38 U.S.C.A. § 5107(b). If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 7. The appellant is hereby informed that he may furnish additional evidence and/or argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109, 112 (1995); and Kutscherousky v. West, 12 Vet. App. 369 (1999). He is further advised that he should assist the RO in the development of his claims, and that failure to cooperate or to report for any scheduled examination may result in an adverse decision See: 38 C.F.R. §§ 3.158, 3.655 (1999) and Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). Thereafter, the case should be returned to the Board, if in order. The appellant need take no action until otherwise notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. A. BRYANT Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).