Citation Nr: 0001005 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 95-33 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for gum disease. 2. Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David T. Cherry, Associate Counsel INTRODUCTION The veteran served on active duty from October 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1994 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, service connection was granted for PTSD, and a zero percent rating was assigned, effective December 20, 1993. Also, service connection was denied for gum disease. In a September 1995 rating decision, a 10 percent evaluation was granted for PTSD, effective December 20, 1993. A 30 percent disability rating was granted effective December 20, 1993, in a May 1996 rating decision. In a November 1998 rating decision, a 50 percent evaluation was assigned, effective December 20, 1993. Although the increase represented a grant of benefits, a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). With regard to the issue of entitlement to service connection for gum disease, the RO did not specifically this issue for appeal. However, in June 1995, the veteran filed a substantive appeal on that claim. Therefore, the issues are as stated on the title page. At the October 1995 hearing held at the RO before a hearing officer, the veteran may have raised the issue of entitlement to service connection for cardiovascular disease as secondary to PTSD and the issue of an increased rating for service- connected hemorrhoids. In a November 1995 claim, the veteran raised the issues of entitlement to direct service connection for depression and for alcohol and drug abuse. In a February 1999 statement with an enclosed VA Form 21-686c, the veteran indicated that he would still have three dependents through June 2000. These matters are referred to the RO for appropriate action. REMAND As previously noted, the veteran has raised the issue of entitlement to direct service connection for depression. On a September 1998 VA psychological examination, it was noted that the veteran had a major depressive disorder and dysthymic disorder secondary to his PTSD. The issue of entitlement to service connection for major depressive disorder and a dysthymic disorder is inextricably intertwined with the issue of an increased evaluation for PTSD. Harris v. Derwinski, 1 Vet. App. 180 (1991). Moreover, on the September 1998 VA psychological examination, it was noted that the veteran was last treated at a mental hygiene clinic in August 1998. In addition, the veteran had been treated at a Vet Center in Riverside, California and by Kaiser Permanente. Thus, additional records may be available. 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 held that a hearing officer has a regulatory duty, pursuant to 38 C.F.R. § 3.103(c)(2) (1999), to suggest the submission of evidence that the claimant may have overlooked and which would be of advantage to the claimant's position. Costantino v. West, 12 Vet. App. 517 (1999). At the October 1994 hearing, the veteran and his representative failed to present any evidence on the issue of entitlement to service connection for a gum disease. However, the hearing officer did not suggest the submission of any evidence with regard to this claim as required by 38 C.F.R. § 3.103(c)(2) (1999). Accordingly, this case is REMANDED to the RO for the following: 1. The veteran has the right to submit additional evidence, including medical evidence that relates any current gum disease or its residuals to active service, and argument on the matters that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should ask the veteran to provide the names and addresses of all physicians and facilities, VA and private, that have treated or evaluated any psychiatric symptoms since December 1993. The RO should then obtain any medical records not currently on file, specifically to include all records from Kaiser Permanente and any additional records from the Loma Linda, California, VA Medical Center and the Vet Center in Riverside, California. 3. The veteran should be afforded a VA psychiatric examination to determine the current nature and severity of all mental disorders, including PTSD; whether the veteran has an actual depressive disorder (such as dysthymic disorder or major depression); and if so whether it is related to PTSD or to service. The claims folder, including the service medical records, and a separate copy of this remand should be made available to the examiner, the review of which should be acknowledged in the examination report. Any indicated tests and studies, including psychological studies (if determined necessary by the psychiatrist), should be conducted. The report of examination should reflect diagnoses of all psychiatric disorders found and an opinion as to whether any depressive disorder, such as major depression or dysthymic disorder, if found, was caused or permanently worsened (rather than temporarily exacerbated) by PTSD or is otherwise related to the veteran's active service. If necessary, the examiner may express any relationship between the service-connected PTSD and any depressive disorder/service in terms of likelihood (i.e., more likely, less likely, or equally likely as not). The examiner should also give a detailed account of all psychiatric manifestations and specify which symptoms are associated with PTSD and any PTSD- or service- related depressive-type disorders, and which are attributable to any psychiatric disorders deemed unrelated to PTSD or active service. If certain symptomatology cannot be disassociated from one disorder or the other, it should be so specified. The examiner must also comment on the extent to which PTSD and any deemed PTSD- or service-related disorders affect the veteran's occupational and social functioning. Finally, a multi-axial assessment should be conducted. The examiner should provide a discussion of Axis IV (psychosocial and environmental problems) and give a Global Assessment of Functioning (GAF) score, with an explanation of the numeric code assigned as stated in DSM-IV. If there are multiple diagnoses, any of which are deemed unrelated to PTSD or service, the examiner should, if possible, indicate what the GAF score would be based only on PTSD and any other PTSD or service related disorders. The rationale for all conclusions should be provided. 4. The RO should then review the examination report. If it is not responsive to the Board's instructions, it is essential that it be amended by the examiner so that the case will not have to be remanded again. 5. After the development requested above has been completed to the extent possible, the RO should again review the record and determine whether additional development is necessary if the claim for service connection for gum disease is found to be well grounded. Any such additional development should be undertaken. The RO should then readjudicate the issue of entitlement to service connection for gum disease. The RO should also adjudicate the issue of service connection for a depressive disorder, both on a direct and secondary basis and with consideration of 38 C.F.R. § 3.310 (1999) and Allen v. Brown, 7 Vet. App. 439 (1995), and readjudicate the issue of an increased rating for PTSD, with consideration of the mental disorders rating criteria in effect prior to and as of November 7, 1996, and Fenderson v. West, 12 Vet. App. 119 (1999). If service connection for any psychiatric disorder is denied, the veteran must be advised of the need to initiate an appeal if he disagrees. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case, containing all applicable laws and regulations not previously included, and given the opportunity to respond thereto. No action is required of the appellant until he receives further notice. 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. JANE E. SHARP 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).