Citation Nr: 0002750 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 95-40 680A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for post traumatic stress disorder (PTSD), currently rated as 50 percent disabling. 2. Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jeffery Wood, Attorney at Law ATTORNEY FOR THE BOARD D. P. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from October 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. That rating decision continued a 50 percent rating for PTSD and denied entitlement to a total rating for compensation on the basis of individual unemployability. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), and in January 1999 the Court issued an Order granting a Joint Motion by the parties to vacate the Board's decision and remand the case to the Board for further proceedings. REMAND The VA has a duty to assist the veteran once his claims are found to be well-grounded. 38 U.S.C.A. § 5107(a)(West 1991). A well-grounded claim is one which is meritorious on its own or capable of substantiation. It need not be conclusive, but only plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The veteran's claim for an increased rating in this case is shown to be well grounded, but the duty to assist him in its development have not yet been fulfilled. 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). In the present case the veteran contends that he is rendered unemployable due to his service connected PTSD. He asserts that he warrants either a 100 percent schedular rating for his PTSD or a total rating for compensation on the basis of individual unemployability. He cites to an October 1995 VA psychiatric examination report to support these assertions. However, a May 1997 VA psychiatric examination report reveals an assessment that the veteran is not rendered unemployable due to his service connected PTSD. This ambiguity must be resolved. The veteran should be afforded another VA psychiatric examination. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has also held that, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App. 213 (1992). In light of the foregoing, the Board would be remiss if it were to attempt to decide the issues on appeal without first obtaining all the pertinent evidence that is missing by scheduling the veteran for another VA disability compensation examination. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim the case is REMANDED to the RO for the following development: 1. The veteran should be examined by a VA psychiatrist to determine the nature and extent of the service-connected PTSD. The report of examination should include a detailed account of all manifestations of psychiatric pathology found to be present. If there are different psychiatric disorders, the examiner should reconcile the diagnoses and should specify which symptoms are associated with and which disorders are part of or caused by the service-connected disorder. If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. The psychiatrist should describe how the symptoms of the service- connected psychiatric disorder affect the veteran's social and industrial capacity. The psychiatrist should specifically whether, in his or her opinion, the service connected PTSD in itself is sufficient to render the veteran unemployable. All necessary special studies or tests including psychological testing are to be accomplished. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the physicians include a definition of the numerical code assigned. Thurber v. Brown, 5 Vet. App. 119 (1993). The diagnosis should be in accordance with the DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4TH ed. 1994). The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner. 2. The RO should ensure that all information in the purple-colored, temporary file is associated with the veteran's permanent claims folder. 3. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. Subsequently, the RO should consider the issues on appeal of entitlement to an increased (compensable) rating for the veteran's service connected psychiatric disorder and entitlement to a total rating for compensation based on individual unemployability. With regard to the former, the RO should consider rating the veteran's service connected PTSD under both the old and new rating schedule. Compare 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996), with 61 Fed. Reg. 52695-52702 (Oct. 8, 1996), codified at 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). See also, VA O.G.C. Prec. Op. 11-97 at 3-4 (Mar. 25, 1997); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Once the foregoing has been accomplished and if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. The Board intimates no opinion as to the ultimate outcome of this case. Further adjudication of the question involving the issues on appeal will be postponed until the remand action is completed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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. BETTINA S. CALLAWAY 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).