Citation Nr: 0001306 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-46 737 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE 1. Evaluation of service-connected post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling. 2. Entitlement to a temporary total rating under 38 C.F.R. § 4.29 for a period from July 1, 1995, to September 20, 1995. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Ehrman, Counsel INTRODUCTION The veteran had active military service from March 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1996 RO rating decision which granted service connection for PTSD, and assigned a 30 percent evaluation. (The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the question currently under consideration was placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating, the Board has characterized this issue on appeal as an evaluation of an original award.) The veteran also appeals a February 1996 rating decision to deny a claim for a temporary total rating under 38 C.F.R. § 4.29 from June 23, 1995, to September 20, 1995. Interestingly, by this same rating action, a temporary total rating was assigned for service-connected PTSD from June 9, 1995, to July 1, 1995. This was done in accordance with 38 C.F.R. § 4.29(a) which allows for a temporary total rating to be assigned until the last day of the month of a qualifying hospitalization. Therefore, in light of the grant of a temporary total rating until July 1, 1995, the only question before the Board is whether such a rating should be extended. In August 1998, the Board remanded the appeal so that a hearing before the Board at the RO could be scheduled in accordance with the veteran's request. However, the veteran failed to report for the scheduled hearing. REMAND A temporary total rating under the provisions of 38 C.F.R. § 4.29 will be assigned without regard to other provisions of the rating schedule when it is established that a service- connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days, or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29 (1999). Additionally, the temporary total rating may be continued for periods of 1, 2, or 3 months in addition to the period allowed by § 4.29(a) if convalescence is required. Moreover, meritorious claims of veterans who need post- hospital care and a prolonged period of convalescence are to be referred to the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321(b)(1). It appears from the evidence of record that the veteran was hospitalized at a VA hospital from May 10, 1995 to June 23, 1995. He was found to be unemployable at the time of discharge and it was specifically noted that he would be going to the C.O.P.I.N. Foundation, Inc. (COPIN) House. A June 20, 1995, COPIN House referral indicates that the veteran needed a supervised living situation to facilitate continuance of a drug-free lifestyle while he worked through PTSD issues. Additionally, a Social Work Survey prepared by VA in August 1995 indicates that the veteran was in the COPIN House and was unemployable; however, the comments made in this report suggested that he would be returning to work in September 1995. The need to transfer the veteran to a supervised living situation following his hospital discharge in June 1995, and the comments regarding his inability to be employed at that time strongly suggest that a period of convalescence with a certain level of post-hospital care was in fact required following the June 1995 hospitalization. Records received from the COPIN House are limited to a December 1995 statement from a substance abuse counselor. This record shows that the veteran was a resident there from June 23, 1995 to November 20, 1995. Diagnoses of PTSD and substance abuse are noted, and his treatment included attendance at group counseling for psychiatric symptomatology. On-going VA out-patient psychiatric counseling was noted. Consequently, it appears that treatment continued for the very problem that the veteran was hospitalized for in May 1995 and for which a temporary total rating was granted until July 1, 1995. Although a copy of a February 1993 VA Advisory Opinion by the Director of Compensation and Pension Services indicates that the COPIN House is a "half-way facility," which does not equate to "hospitalization" or "post-hospital care and a prolonged period of convalescence" under paragraph 29, this February 1993 opinion was rendered in the context of another claimant's case. In short, it does not specifically address whether convalescence was required in the instant case. The language of this opinion suggests that the level of care provided at COPIN House does not, per se, equate to post- hospital care and a prolonged period of convalescence. The Board finds it hard to imagine how such a conclusion could be made outside the context of the specifics of a particular veteran's case. As noted above, several references have been made regarding the veteran's unemployability at the time of hospital discharge and again at the time of a Social Work Survey, conducted while he was in the COPIN House. "[P]ost-hospital care and a prolonged period of convalescence" cannot be construed as requiring the same level of care as might be required for "continuous hospitalization." 38 C.F.R. § 4.29. Otherwise, hospitalization would be the chosen course of action and those portions of the regulation that address extension of the total rating on account of convalescence would be rendered meaningless. Therefore, given the evidence showing unemployability due to PTSD at the time of hospital discharge and the consequent need for supervised living, the question is raised as to whether the veteran required convalescence, and if so, for how long. Since it does not appear that all the records from the COPIN House have been obtained, and because the extension of the temporary total rating is directly raised by the evidence of record, the Board finds that further evidentiary development is required. As for the schedular rating claim, the veteran contends that symptoms of his service-connected PTSD cause greater impairment than contemplated by the 30 percent evaluation currently in effect. In this regard, the Board notes that the Court has held that VA's duty to assist veterans in developing facts pertinent to well-grounded rating claims, mandated by 38 U.S.C.A. § 5107(a) (West 1991), includes obtaining pertinent medical records, when VA is placed on notice that such records exist. See Ivey v. Derwinski, 2 Vet.App. 320 (1992). In the case on appeal, the veteran testified in February 1997 that he continued to receive out-patient psychiatric therapy at the VA Medical Center in Buffalo, New York (VAMC). He identified the name of a particular VA clinician. Although the RO's two requests for copies of VA treatment records were both returned with an indication that the veteran's treatment at the VAMC terminated in November 1995, a December 27, 1995 VA psychiatric clinic note is of record, signed by the clinician identified by the veteran. This record makes specific reference to further follow-up therapy. Additionally, a March 1997 VA PTSD examination report indicates ongoing VA psychiatric treatment at this VA facility. Accordingly, it appears that additional VA PTSD clinic or psychiatric therapy records exist which have not yet been obtained. Given that the veteran has not been examined since 1997 for compensation purposes, the Board also finds that an examination would be helpful following receipt of the aforementioned records. Finally, because the claim for a higher rating arises from the rating decision which granted the veteran's original claim of entitlement to service connection, the question of "staged" ratings needs to be considered by the RO. See Fenderson v. West, 12 Vet. App. 119, 125-26, 132 (1999) (citing 38 C.F.R. §§ 3.400, 3.500, 4.29, 4.30 (1998). Accordingly, the case is REMANDED to the RO for the following actions: 1. The veteran should be given an opportunity to supplement the record on appeal. The RO should obtain all records in the veteran's case, including day-to- day treatment notes and administrative records, prepared by the COPIN House beginning June 23, 1995. All VA records prepared during the time that the veteran was a resident of the COPIN House should also be obtained, if not already part of the record. The RO should obtain and associate with the claims file, any VA mental health records pertaining to hospital or out-patient treatment, individual or group therapy, and PTSD Clinic treatment from the VA medical facility in Buffalo, New York, dated from June 1994 to the present. The veteran should also be asked to identify any other sources of treatment, and records from such sources should be sought. 2. A VA psychiatrist should be asked to review the claims file, examine the veteran, and provide findings necessary to apply both old and new criteria for rating psychiatric disability. 38 C.F.R. § 4.132 (1996); 38 C.F.R. § 4.130 (1999). A Global Assessment of Functioning (GAF) Score should be provided, along with an explanation of its meaning in the veteran's case. 3. The RO should re-adjudicate the claim for a temporary total rating under 38 C.F.R. § 4.29. Consideration should be given to the extent of required convalescence and to whether referral to the Director of the Compensation and Pension Service under 38 C.F.R. § 4.29(g) is warranted. A copy of any determination by the Director should be associated with the claims folder. (Any additional development deemed necessary for such consideration should be undertaken.) The RO should also re- adjudicate the schedular rating claim. Consideration should be given to whether "staged" ratings are appropriate. If any benefit sought by the veteran is denied, the RO should issue a supplemental statement of the case. If a determination is made not to refer the § 4.29 issue to the Director, Compensation and Pension Service, the reasons for such a determination should be explained in detail within the context of the available evidence, including the evidence showing that the veteran was unemployable at discharge in June 1995 and required supervised living in order to work on PTSD issues. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. MARK F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).