Citation Nr: 0001683 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-02 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE 1. Entitlement to an increased rating for post traumatic stress disorder, currently rated as 30 percent disabling. 2. Entitlement to a total rating for compensation based upon unemployability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas D. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from December 1964 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim for an increased rating for post traumatic stress disorder, currently rated as 30 percent disabling and a total rating for compensation based on unemployability. It should be noted that although the veteran did not file a specific substantive appeal in response to the supplemental statement of the case which discussed the total rating issue, the veteran did reference this issue in the substantive appeal filed with the increased rating issue. Further, the total rating issue is view as intertwined with the increased rating issue. Accordingly, the Board finds that the total rating issue is properly before the Board. REMAND The veteran seeks an increased rating for his service connected post traumatic stress disorder, currently rated as 30 percent disabling and a total rating based on individual unemployability. The segment of the rating schedule for determining the disability evaluations for mental disorders was amended effective November 7, 1996. The United States Court of Veterans Appeals (Court) has held that where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308 (1991). In such cases, the RO is required to review all the evidence in light of both the old and new criteria, and apply the criteria that result in the most favorable outcome to the appellant. While the RO has informed the veteran of the revised rating criteria for psychiatric disorders, it has failed to inform him of the criteria in effect prior to November 7, 1996. These criteria are applicable because the veteran's claim, first filed in July 1996, originated prior to the regulatory change. Next, the RO sent a June 1997 letter to the veteran asking him if he is in receipt of Social Security Disability benefits. He did not respond, and the RO therefore did not seek any such records from the Social Security Administration. However, already of record was a letter from the veteran, received at the RO in January 1996, wherein he clearly stated, "I recently began receiving Social Security Disability benefits." Thus, the RO had explicit notice that he in fact does receive such benefits, and these records must be obtained. 38 U.S.C.A. § 5107(a) (West 1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In light of the above, this claim is remanded for the following additional development: 1. The RO should ensure that all pertinent records of treatment are associated with the claims folder, including, but not limited to, the records associated with the award of Social Security Disability benefits to the veteran. To assist in this development, the veteran should be contacted and requested to furnish the names and/or facilities of his current treatment. These facilities should be contacted to ensure that all records are obtained. 2. The veteran should be scheduled for a VA psychiatric examination. The claims folder should be reviewed in conjunction with the examination. The psychiatrist should review the new and old rating criteria for mental disorders, and all indicated tests must be conducted. The findings of the psychiatrist must address the presence or absence of the specific criteria, both old and new, set forth in the rating schedule and, if present, the frequency and/or degree(s) of severity thereof. Any necessary special studies or tests are to be accomplished. The examiner should identify diagnostically all psychiatric symptoms and clinical findings which are manifestations of his service-connected post traumatic stress disorder, and render an opinion for the record as to the degree to which those specific symptoms and findings affect the veteran's ability to establish and maintain effective and favorable relationships with people (social impairment), and the degree to which they affect his reliability, productivity, flexibility, and efficiency levels in performing occupational tasks (industrial impairment). See Massey v. Brown, 7 Vet. App. 204 (1994). The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF) provided in the Diagnostic and Statistical Manual for Mental Disabilities. This assessment should be based only on the veteran's service connected disability of post traumatic stress disorder. It is imperative that the physician explain the significance of the numerical code assigned in order to assist the RO and the Board to comply with the requirements of Thurber v. Brown, 5 Vet. App. 119 (1993). A complete rationale for any opinion expressed must be provided. 3. After completion of all requested development, if other development is felt necessary it should be accomplished. The RO should review the veteran's claim under both the old and the new rating criteria and rated in accordance with the guidance expressed by the Court in Karnas including the question of the veteran's entitlement to a total rating. If the action taken remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case. They should then be afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if such is warranted. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. LAWRENCE M. SULLIVAN 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) (1998).