BVA9505418 DOCKET NO. 93-13 523 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for depressive neurosis with conversion reaction manifested by glove type hypothesia and complaints of poor circulation resulting from cervical spine injury, currently evaluated as 50 percent disabling. 2. Entitlement to a total rating for compensation purposes based on individual unemployability. 3. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for schizophrenic reaction and organic brain syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from March 1958 until April 1960. He was discharged from service because of family hardship. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). On appeal the veteran claims that he is now competent for VA benefit purposes. In support of this claim the veteran has submitted a statement from the appellant, as well as a statement from at least one health care provider. This issue, however, is not currently developed or certified for appellate review. Accordingly, it is referred to the RO for appropriate consideration. REMAND While on active duty the veteran hit his head in an automobile accident; slipped and fell in the shower hitting his head; and was treated for various complaints after injuring his neck in a swimming incident. In March 1968, the RO granted service connection for the residuals of a cervical spine injury. In June 1974, the Board granted service connection for psychoneurosis, manifested by conversion reaction and complaints of poor circulation, as part of the veteran's cervical spine injury thereby combining both the organic and psychological aspects of his disablement under the appropriate diagnostic code determined by the rating board to represent the major degree of disability. The veteran's only service-connected disability is for depressive neurosis with conversion reaction manifested by glove type hypothesia and complaints of poor circulation resulting from cervical spine injuries. This disability is evaluated under Diagnostic Codes 9405-9402-5299-5290, and is currently assigned a 50 percent rating. The veteran contends that he is unable to work because of his physical and psychiatric conditions, and requests that he be granted a total rating for his service- connected disability for compensation purposes on the basis of individual unemployability. In addition to the 50 percent VA compensation, he is also receiving Social Security benefits and civil service retirement. Since March 1984, the veteran has been incompetent to handle his finances for VA purposes, and his wife has been appointed by the VA as his custodian and fiduciary agent. In addition to the veteran's service-connected neurosis, the appellant notes that the veteran also carries the diagnoses of schizophrenic reaction, organic brain syndrome, and paranoid personality. The appellant and the veteran's private treating physicians contend that the additional psychiatric disabilities all represent the same illness as his service-connected disability and all psychiatric aspects of his illness stem from the same incidents that occurred while the veteran was on active duty. In June 1980, the Board denied service connection for the residuals of a head injury, to include brain damage and schizophrenia, on the basis that these disorders were not incurred in or aggravated by service. Schizophrenia was not to be presumed to have been incurred in service, and all of these disabilities were not found to be proximately due to or the result of service-connected disease or injury. In April 1983, the Board denied service connection for the residuals of a head injury, including brain damage and schizophrenia, on the same bases. In addition, the Board in April 1983, held that its June 1980 decision was final, and the evidence received since the earlier decision did not establish a new factual basis warranting modification of that determination. In September 1988, the Board reiterated the finality of its June 1980 decision, and found that a new factual basis for allowing service connection for schizophrenia and brain damage had not been established. The Board additionally denied service connection for organic brain syndrome. In February 1992, the veteran filed a claim for an increased rating for his psychoneurosis and for individual unemployability. In June 1992, he amended his claim to include entitlement to service connection for schizophrenic reaction and organic brain syndrome on the basis that the evidence submitted is new and material which would warrant reopening the claim for these disabilities. The most recent VA psychiatric examination was conducted in March 1992. That study diagnosed paranoid schizophrenia, unstable type, by history; major depression with psychotic features; conversion disorder (hysterical neurosis, conversion type); organic personality disorder, explosive type; organic mental disorder; and borderline personality disorder. The examining physician recommended that the veteran undergo thorough neurosurgical and psychological evaluations. While a psychological examination for competency purposes was conducted, there is no evidence that a psychological examination to differentiate the symptomatology caused by each disorder was performed, or that a neurosurgical study was conducted. On appeal, the appellant's representative asserts that based on the multiplicity of diagnostic codes pertaining to the veteran's service-connected psychiatric condition, that an independent medical expert’s opinion should be secured to distinguish between the various neuropsychiatric diagnoses and their interrelationship within the veteran's over-all medical condition. While the Board does not believe that the medical complexity of this case warrants securing an independent medical expert opinion at this time, the Board agrees that clarification of the symptomatology caused by the veteran’s service connected disorder is warranted. Finally, the Board observes that the veteran’s claims file now consists of four volumes which together stack over one foot in height. While the Board desires to assist the appellant in any manner authorized by statute or regulation, our ability to do so in a timely manner is not advanced by the veteran’s submission of numerous copies of exactly the same evidence for incorporation into the claims file. Like the United States Court of Veterans Appeals, the Board "does not wish to have unnecessary materials in the transmitted record." Cf. U.S. Vet. App. R. 10. Accordingly, we believe that the time is now ripe to have the veteran, the appellant, their representative and a representative of the RO sit down together and remove from the claims file any and all material which is duplicative of that which was of record in September 1988. No evidence which was submitted to VA on or before September 21, 1988, should be removed, and only that evidence which is a photocopy of that previously of record may be removed. Any and all duplicative documents must be returned to the appellant and the veteran for their safe keeping. Therefore, pursuant to the VA's duty to assist the appellant in development of facts pertinent to her claim on behalf of the veteran under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994), this case is REMANDED for the following action: 1. The RO is to obtain copies of the veteran's medical treatment records, both private and VA, subsequent to March 1992 and incorporate any records received into the veteran's claims file. 2. The RO should then contact the veteran, the appellant and their representative, and arrange for a meeting to review the claims file and the evidence which has been submitted since the Board’s September 21, 1988 decision. Upon review of the claims file, any and all photocopies of evidence which is duplicative of evidence which was before the Board in September 1988 should be removed from the file and given to the veteran and his spouse. No original evidence may be removed. At the conclusion of this meeting the RO should have the appellant, or the veteran if he is competent, and their representative sign a statement indicating that only duplicative evidence was removed, and that the custody of such evidence was given to them. 3. After each of the foregoing steps have been accomplished, the RO is to arrange for the veteran to undergo neurosurgical, psychological, and psychiatric evaluations. The psychiatric examination is to be conducted by a board of two psychiatrists who have not previously examined or treated the veteran. All examinations must be conducted in accordance with the VA Physician’s Guide for Disability Evaluation Examinations, and all appropriate studies are to be performed. A copy of this remand and the veteran's entire claims file must be made available to and reviewed by all the examiners. In conducting the psychiatric examination, the board of two psychiatrists are directed to note and distinguish all the psychiatric disorders found. A Global Assessment of Functioning Score, consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (3d ed. rev. 1987), must be assigned for each and every psychiatric disorder, including, if extant, organic brain syndrome, along with an explanation of what the assigned score represents. A complete rationale for the score assigned must be provided. In addition, for each and every psychiatric disorder found the board of psychiatrists should offer an opinion, with complete rationale, on each of the following questions: 1) whether the disorder is etiologically related to the veteran’s service connected depressive neurosis with conversion reaction manifested by glove type hypothesia and complaints of poor circulation resulting from cervical spine injury; or 2) whether the disability is etiologically related to another disorder. The examiners must give an example of the characteristics of each disorder found, express an opinion as to the severity of these symptoms, and distinguish, by reference to the symptomatology caused by each disorder, the veteran's service- connected disorder's effect on his social and industrial adaptability as distinguished from his non-service connected disorders' effect on social and industrial adaptability. Finally, the examiners must express an opinion whether any psychotic disability is linked to any specific incident or incidents in service. If symptoms or disorders cannot be distinguished, all examiners should so state and explain why. As noted above, all opinions must be accompanied by a complete rationale. 4. Following completion of the foregoing, the RO must review the claims file and ensure that all of the above-mentioned development has been completed in full. If any development is incomplete, including if the requested examinations do not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 5. Finally, the RO is to review and reevaluate the veteran's claim on all the issues. In evaluating the increased rating and individual unemployability issues, consideration is to be given to the holdings in Massey v. Brown, 7 Vet.App. 204 (1994). If the decision remains unfavorable to the appellant, she and her representative are to be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with current appellate procedures, the claims files, to include the additional requested evidence, is to be returned to the Board for further appellate consideration. DEREK R. BROWN 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) (1994).