BVA9501067 DOCKET NO. 93-09 781 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 30 percent for manic depressive reaction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. King, Associate Counsel REMAND The appellant served on active duty from September 1973 to December 1974. This matter is before the Board of Veterans Appeals (Board) on appeal from a November 1991 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida, which denied the appellant's claim for an evaluation in excess of 30 percent for manic depressive reaction. Material in the claims folder reflects that the appellant was treated for manifestations of an acute manic episode in September 1974. Symptoms observed at that time included grandiosity, pressure of thought and speech, hyperactivity and flight of ideas. The record reflects that the appellant was thought to be psychotic at that time. Later, service records show that the appellant's condition was evaluated as being unstable, and that he was found to be unfit for further military duty. Thereafter, service connection was granted, and a 30 percent evaluation was assigned his manic depressive reaction by rating decision, dated in January 1975. The issue of entitlement to an increased rating for the appellant's manic depressive reaction was denied previously by Board decision in July 1988. When the appellant filed his new claim for an increased rating in July 1991, he indicated that his psychotic disorder had progressed to the point of uncontrollability, that his marriage was failing, that his teaching certificate had been suspended until October 1991, and he had been informed by the County that he would not be rehired. Based on this evidence, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is inextricably intertwined with the issue certified on appeal, pursuant to the holding of the United States Court of Veterans Appeals (Court) in Harris v. Derwinski, 1 Vet.App. 180 (1991). In this regard, the Court has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is inadequate to evaluate the current state of the condition, the VA must provide a new examination. Olsen v. Principi, 3 Vet.App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Here, the record on appeal contains the appellant's assertions that he is unemployable because of his service-connected psychiatric disability. Additionally, as will be explained below, there is a difference in opinion among treating professionals as to the appropriate diagnosis of the appellant's psychological disorder, as well as the degree to which his social and industrial capacity is impaired by this disorder. Therefore, the Board is of the opinion that the appellant should be afforded a contemporaneous VA psychiatric examination in order to determine whether symptomatology currently experienced by the appellant is attributable to his service-connected psychotic disability, manic depressive reaction, or another, heretofore unaccounted for psychoneurotic disability. With regard to the TDIU issue, a December 1991 private vocational evaluation is of record which shows that an extensive battery of tests was conducted to determine the appellant's suitability for certain types of employment. The examiner indicated that the appellant had a Masters degree with additional post graduate credit in the area of education, that he was last employed for a five-week period in May 1991, after which he was released due to an inability to get along with his co-workers. The vocation evaluator also indicated that the appellant's interpersonal relationships appeared to be severely limited, with inappropriate behavior observed even during the testing procedures. The report concludes with statements to the effect that it would be most appropriate for him to engage in the process to obtain Social Security Disability benefits and that it is unrealistic to provide the appellant with competitive employment due to his present emotional condition. Given these recommendations, it is felt at this time that the Board must inquire as to whether the appellant has applied for these benefits, and if so, whether and on what basis such benefits were awarded. The Court has held that although a determination of the Social Security Administration (SSA) is not controlling for VA determinations, it is certainly pertinent to the present claim Collier v. Derwinski, 1 Vet.App. 413, 417 (1991). In that this evidence is relevant to a determination of the appellant's ability to secure and follow a substantially gainful occupation under 38 C.F.R. § 4.16 (c), the Board is of the opinion that any medical records and documents pertaining to a SSA determination should be obtained and associated with the claims folder. In light of the opinion expressed by the private vocational evaluator, the Board finds that the current claim is well- grounded, and that there is a duty to assist the appellant in the development of evidence which is pertinent to this claim. However, the Court's jurisprudence is to the effect that the appellant's non-service connected disabilities may not be considered in a TDIU claim. VanHoose v. Brown, 4 Vet.App. 361, 363 (1993). Inasmuch as the appellant has been diagnosed as having psychiatric disabilities in addition to that for which service connection has been granted, a current VA examination is required in order to reconcile the various diagnoses and determine the severity of his service-connected psychiatric disability so that the TDIU claim may be fairly adjudicated. A September 1991 report of a VA psychiatric examination reflects the appellant's clinical history, which included his statement that he was then under the care of a VA psychiatrist for individual psychotherapy. This statement corresponds to VA psychiatric outpatient treatment records for the period between June through August 1991. During the examination, the appellant provided a clinical history. On mental status examination, the diagnostic impression was bipolar disorder, hypomanic. The examiner stated that the appellant had a major mental illness and a strong personality, most likely antisocial trait. Additionally, private treatment records have been submitted in support of the appellant's claim. Specifically, Robert P. Ludwig, Psy.D., performed a battery of psychological tests on the appellant in September 1991, and indicated that he did not see the appellant as having a bipolar disorder, although he noted that the appellant had many hypomanic characteristics. He was said to best meet the criteria for Obsessive Compulsive Personality Disorder (DSM-III-R-301.40). In relation to the issue of the appellant's ability to work, it was stated that the appellant has high average intelligence and would require vocational counseling to place him in a job appropriate to his disability, requiring low interpersonal involvement and where detail is valued. In a November 1991 statement, C.R. Handy, Ph. D., indicated that she had rendered both individual and marital treatment to the appellant and that his disability was most appropriately diagnosed as Major Depression (DSM-III-R-296.23) and a Personality Disorder with narcissistic, paranoid, and obsessive compulsive features (DSM-III-R-301.90). R. Rodriguez, M.D., stated in December 1991 that the appellant was referred to him for evaluation and treatment of a chronic mood disturbance. The examiner indicated that the diagnostic impressions were: 1. Axis I-Depressive Disorder not otherwise specified; and 2. Obsessive Compulsive Personality Disorder. Rule out Paranoid Personality Disorder. In November 1992, the appellant stated that he felt that the record was adequate for rating purposes and that he wished the case to be decided based on the current evidence; however, he also indicated that he had been treated by Dr. Sandford Mintz for weekly psychotherapy since "early 1992" and James Hopkins, Ph.D. for weekly marital therapy. The appellant, in expressing frustration with the adjudication process, stated that he would not endorse any additional attempts to acquire treatment records from these mental health professionals. Not only is it not clearly stated that the appellant wishes to waive appellate review of the aforementioned, it is also not clear that he appreciates the degree to which the adjudication process may be compromised by the inability to add these pertinent records to his claims folder. Given the variety of diagnoses which have been rendered in this case, it is believed that the current record on appeal is not adequate to accurately evaluate either the nature or the severity of the appellant's disability and that additional evidentiary development is necessary. The appellant has recently indicated that he was employed for a time in April and May 1991. Records pertaining to this employment and the circumstances surrounding the termination the appellant's employment would be of assistance in rendering an equitable disposition in this claim. The Court has held that the duty to assist may arise when the veteran simply refers to private medical examinations even when there is no specific request that the VA obtain these records. Caffrey v. Brown, 6 Vet.App. 377 (1994). Moreover, the fact that the appellant has asserted that his psychiatric disability is so severe as to require that he seek medical treatment is sufficient to trigger the VA duty to assist him in the development of facts pertinent to his claim. The Court held in Caffrey that the veteran's claim that his condition has become more severe is well grounded where the condition was previously service-connected and rated and the veteran subsequently asserts that a higher rating is justified. As the last VA psychiatric examination of record was conducted in September 1991, the Board is of the opinion that the appellant should be afforded a contemporaneous psychiatric examination by a board of two psychiatrists to determine the severity of any bipolar disorder and any coexisting psychoneurotic disorders found to be present. Given the jurisprudence of the Court, and the evidentiary development which is necessary in this claim, it is REMANDED for the following actions: 1. The appellant should be requested to indicate whether he has filed a claim for SSA disability benefits. If the response is affirmative, a copy of any decision as to entitlement to benefits, as well as the medical records upon which the determination as to original or continuing entitlement to benefits was made, should be obtained from the SSA. 38 U.S.C.A. § 5106 (West 1991); 38 C.F.R.§ 3.201(a) (1993). 2. The RO should request that the appellant provide the names, places and approximate dates of treatment for physicians or private medical facilities that have rendered treatment post service pertaining to his nervous disability. The appellant should be provided with the proper release of information forms in order to obtain copies of these records. The appellant should be advised as to the necessity of obtaining these records and the possible adverse consequences stemming from a failure to cooperate with an effort to obtain private psychiatric treatment records. 3. The appellant should be afforded a VA social and industrial survey to assess his employment history, his current day-to-day functioning, and ascertain information relating to the period of employment ending in May 1991. An official of his prior employer should be requested to furnish specific information concerning the facts surrounding the need to terminate his employment in May 1991. A written copy of the VA social work service report should be associated with the record. 4. Thereafter, the appellant should be afforded a VA psychiatric examination by a board of two psychiatrists (preferably physicians who have not previously examined him before), if possible. The examiners should be requested to review the claims folder and a copy of this REMAND prior to the examination in order to obtain a true picture of the progress of the appellant's psychiatric status. After an assessment of the appellant's clinical history, the examiners should evaluate the appellant to determine whether any psychiatric disorder or disorders are present and, if so, the correct diagnostic classification. If an Axis I psychiatric disorder is diagnosed, the examiners should render an opinion as to when this disorder was first manifested and whether any currently manifested Axis I disorder represents a new clinical entity not related to an earlier diagnostic entity. Primary personality disorders should be fully described and classified. If there are different psychiatric disorders found on examination, the psychiatrists should reconcile the diagnoses and specify which symptoms are associated with each disorder. Findings elicited during the psychiatric examination should be stated with attention given to the degree of severity of each disability found. Additionally, a multi axis diagnosis should be stated, which includes Axis V, the Global Assessment of Functioning Scale. The examiners should each be requested to provide an opinion as to the degree to which the appellant has experienced a diminution of his ability to engage in full-time, steady gainful employment as a result of his service- connected disability. Psychological testing should be utilized, as appropriate. 5. The RO should evaluate the claim for a TDIU along with the claim originally certified on appeal. The attention of the RO is directed to the provisions of 38 C.F.R. §§ 4.16, and precedent jurisprudence of the Court, cited above. In evaluating the disabilities at issue, consideration should be given to entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993). If any benefit sought on appeal, for which a Notice of Disagreement has been filed, remains denied, the RO should provide the appellant and his representative with an appropriate Supplemental Statement of the Case, and they should then be afforded an opportunity to respond. The claim should then be returned to the Board for further appellate review, if in order. J.F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).