BVA9507155 DOCKET NO. 91-38 457 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel REMAND The veteran served on active duty from August 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from decisions from the Regional Office (RO). By rating action of November 1989, the RO granted service connection for post-traumatic stress disorder (PTSD) and assigned a 10 percent evaluation for it. The veteran has disagreed with the assigned rating. When this case was previously before the Board in December 1991, it was remanded to obtain additional medical evidence. The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible, that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the veteran's evidentiary assertions concerning the severity of the symptoms of PTSD that are within the competence of a lay party to report are sufficient to conclude that his claim is well- grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992); Espiritu v. Derwinski, 2 Vet.App. 492 (1992); King v. Brown, 5 Vet.App. 19 (1993). A preliminary review of the record discloses that service connection for PTSD was granted by the RO in a rating decision dated in November 1989. This was based, in part, on the findings of a Department of Veterans Affairs (VA) examination conducted in August 1989. The sole diagnosis following that examination was PTSD. A 10 percent evaluation was assigned by the RO, and that rating has remained in effect since May 1989. The veteran was hospitalized in a private facility in September 1989 following a motor vehicle accident in which he ran into a stationary vehicle. This was characterized as a possible attempted suicide. The final diagnoses included attempted suicide, acute alcohol intoxication and post Vietnam stress syndrome. The veteran was transferred to a VA hospital, where he was admitted from September to October 1989. He related that he had been having symptoms of PTSD for some time. It was indicated that he had been having difficulties with alcohol and felt that it was secondary to his having been in Vietnam. He stated that his symptoms of PTSD included flashbacks, nightmares, hypervigilance, and episodes of rage during which he committed violent acts at home and outside the home which he claimed he could not remember. The pertinent diagnoses were alcohol dependence, dysthymic disorder, and personality disorder, not otherwise specified, with antisocial, narcissistic and paranoid features. PTSD was not diagnosed. The veteran was hospitalized by the VA from March to April 1990 and from September to October 1990. The diagnoses following the earlier period of hospitalization included substance abuse, alcohol, PTSD, and adjustment disorder with mild depression. The diagnoses following the more recent hospitalization were adjustment disorder with mild anxiety and depression and PTSD. When this case was before the Board in December 1991, the posture of the record was essentially as summarized above. In its remand, the Board pointed out that there were numerous psychiatric diagnoses of record and that no attempt had been made to clarify them or to delineate the disability attributable to each psychiatric disorder. In addition, the Board noted the veteran's allegations concerning his difficulties retaining employment. Accordingly, the Board requested that the RO conduct a social and industrial survey and an examination by a board of psychiatrists. Although an examination was conducted in June 1993, the report of the findings was signed by only one psychiatrist, and he did not provide responses to the questions posed by the Board in the remand. Moreover, it appears that while psychological testing was done, the results were not reviewed by the examining physician. Finally, a social and industrial survey was not performed. The RO recognized that the examination was inadequate and did not comply with the instructions set forth in the Board's remand. Thus, it returned the veteran's claims folder to the medical center for further action. The response indicated that, indeed, the veteran had been examined by two psychiatrists and further stated that one of the doctors "feels that their professional opinions have been fully expressed and this facility is unable to complete exam[ination] exactly as requested" by the Board. Clearly, despite the RO's best efforts to obtain compliance with the Board's remand, the medical center did not do so. In Smith v. Brown, 5 Vet.App. 335 (1993), the Court held that when the VA has requested an opinion from a physician, and that opinion is not contained in the record, the VA has violated its duty to assist the appellant in the development of the claim. See also Littke v. Derwinski, 1 Vet.App. 90 (1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990); and Green v. Derwinski, 1 Vet.App. 121 (1991). Moreover, in Waddell v. Brown, 5 Vet.App. 454, 456 (1993), the Court held, in essence, that where service connection is only in effect for one psychiatric disorder, and several other psychiatric disorders have been diagnosed, it is incumbent on the Board to obtain a medical opinion that reconciles the diagnoses and ascertains the degree of disability attributable to each psychiatric disorder. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes providing additional VA examinations by a specialist when recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO should contact the veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers from whom he has received treatment for his psychiatric disability since 1993. He should execute the proper authorization forms for release of this information. 2. Thereafter, the RO should seek to obtain copies of all treatment records referred to by the veteran. 3. The RO should request a social and industrial survey to obtain a complete history of the veteran's employment, as well as any jobs for which he was denied a position. 4. The veteran should then be afforded an examination by a board of psychiatrists to determine the nature and severity of the manifestations of his PTSD. The examination reports should include a detailed account of all pathology found to be present. If there are psychiatric disorders diagnosed other than PTSD, the examiners should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). The degree of functional impairment resulting from PTSD should be specified, if possible, and if this is not possible, the examiners should so indicate. If certain symptomatology cannot be dissociated from one disorder or another, it should be so specified. The psychiatrists should describe how the symptoms of PTSD affect the appellant's social and industrial capacity. The report of the examinations should include a complete rationale for all opinions expressed. All necessary special studies or tests are to be accomplished. The examiners should assign a numerical code under the Global Assessment of Functioning Scale (GAF) provided in the Diagnostic and Statistical Manual for Mental Disorders (Third Edition, Revised) (DSM-III-R). It is imperative that the physicians include a definition of the numerical code assigned under DSM-III-R in order to assist the RO and the Board to comply with the requirements of Thurber v. Brown, 5 Vet.App. 119 (1993). The entire claims folder and a copy of this remand must be made available to the examiners for review in conjunction with the examination. Following completion of the above, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case, and the case should then be returned to the Board for further appellate consideration. 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).