BVA9503863 DOCKET NO. 93-08 268 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased evaluation for bipolar disorder, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD Thomas C. Taylor, Associate Counsel INTRODUCTION Appellant served on active duty from April 1981 to November 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal of a February 1992 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to an increased evaluation for bipolar disorder, currently rated as 10 percent disabling. REMAND The threshold question in all cases is whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Foremost, there must be evidence of a current disability. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Furthermore, there must be more than a mere allegation; the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the issue is factual in nature, e.g., whether an incident occurred during service or whether a clinical symptom is present, competent lay testimony may constitute sufficient evidence to establish a well- grounded claim. See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). Moreover, such medical evidence must be more than speculative. Tirpak, at 611 (term "may or may not" renders opinion speculative). Any adjudication on the merits of a claim which is not well-grounded would constitute error. Grivois v. Brown, 6 Vet.App. 136 (1994). A claim for an increase rating is regarded as a new claim and is subject to the well-groundedness requirement. Proscelle v. Derwinski, 2 Vet.App. 629, 631-632 (1992). In order to present a well grounded claim for an increased rating of a service connected disability, the veteran need only submit his or her competent testimony that symptoms, reasonably construed as related to the service connected disability, have increased in severity since the last evaluation. Proscelle, 2 Vet.App. at 631, 632; See also Jones v. Brown, 7 Vet.App. 134 (1994). The veteran has stated that the symptoms of his service connected disability have increased and has submitted VA medical reports of treatment. The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107. That is, he has initially presented subjective complaints which, given the nature of the disabilities involved, are sufficient to make his claim plausible. Once a claimant has submitted a well grounded claim which is "capable of substantiation," Section 5107(a) of 38 U.S.C.A. requires VA to "assist such a claimant in developing the facts pertinent to the claim." Sagainza v. Derwinski, 1 Vet.App. 575, 580 (1991). An appellant and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been transferred to the Board, or until the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. Any such request or additional evidence must be submitted directly to the Board and not to the agency of original jurisdiction. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. 38 C.F.R. §§ 20.800, 20.1304(a). Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of 38 C.F.R. § 20.1304 or 19.37(b) must be referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case unless this procedural right is waived by the appellant or unless the Board determines that the benefit, or benefits, to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. 38 C.F.R. § 20.1304(c). The RO certified the veteran's appeal to the Board in April 1993. The veteran submitted additional evidence to the Board in September 1993. Neither the veteran or his representative has waived RO consideration of the additional evidence, and the Board is unable to allow the appeal on the current record. Moreover, the representative has now raised the issue of the veteran's unemployability, an issue not adjudicated by the RO. When, during the course of review the Board determines that further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the Board shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 19.9. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). In order to fulfill its statutory duty to assist the veteran and adequately develop his claim, the Board believes that further development, as specified below, is required. See 38 U.S.C.A. § 5107(a). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should request, through the veteran's representative, that the veteran provide the names and addresses of all health care providers who have treated him for the disabilities for which he seeks service connection, as well as the approximate dates of such treatment. Then, after obtaining any necessary authorization from the veteran, the RO should request copies of those treatment records not already of record. The requested records should include any clinical notes of treatment. 2. The RO should arrange for a VA psychiatric examination in order to determine the extent of the veteran's service connected psychiatric disorder. The claims folder, containing the requested medical records and a copy of this remand, should be made available to the examiner in conjunction with the evaluation. The examiner should, after a review of the record and of the examination, express an opinion as to the exact manifestations and severity of the veteran's psychiatric disability, contemplating and delineating both when the veteran is in compliance with his prescribed medication and when he is not in compliance. The examiner should further express an opinion as to whether or not the appellant's noncompliance with his medication regime is a manifestation of the service connected disorder. In assessing the severity of the appellant's service connected psychiatric disorder, the examiner is requested to provide a score under the Global Assessment of Functioning (GAF) Scale provided in the Diagnostic and Statistical Manual of Mental Disorders, (Third Edition Revised). It is further requested that the examiner provide a definition of the score under the GAF scale in order to assist the RO and the Board to comply with Thurber v. Brown, 5 Vet.App. 119 (1993). 3. The RO should arrange for a VA Social and Industrial Survey of the veteran in order to assess the impact of his bipolar disorder on his occupational functioning. 4. The RO should readjudicate the increased rating claim and the unemployability claim in light of all the evidence, including that obtained pursuant to the requested development. If the veteran continues to disagree with the decision of the RO, and if otherwise appropriate, the RO should issue a Supplemental Statement of the Case and should provide the veteran and his representative an opportunity to respond. A Substantive Appeal must specifically identify the issue, or issues, appealed. A Substantive Appeal should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination, or determinations, being appealed. To the extent feasible, the arguments should be related to specific items in the Statement of the Case or Supplemental Statement of the Case. See 38 C.F.R. § 20.202. The RO should then return the case to the Board for further consideration. In taking this action, the Board implies no conclusion, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran until he is notified by the RO. RICHARD B. FRANK 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).