Citation Nr: 0007480 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 95-28 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for the service-connected anxiety neurosis with depression, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from November 1974 to November 1978, with two years, three months prior active duty service. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a February 1995 rating action of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In March 1996, the veteran testified at a personal hearing at the RO. A transcript of that hearing is associated with the record. The Board remanded the case in November 1998 for additional development. In the Introduction to the earlier remand, the Board referred the issue of entitlement to a total rating based on individual unemployability to the RO for action deemed appropriate. It is unclear whether the RO took any action on that claim. The veteran reiterated that claim in a January 1999 statement and, thus, the issue of entitlement to a total rating based on individual unemployability is again referred to the RO for any appropriate action. REMAND The veteran contends that his service-connected psychiatric disorder is more severe than the current rating indicates. The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (hereinafter, the Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Inasmuch as the veteran has submitted a well- grounded claim, VA is obligated to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). When the veteran's appeal was initially reviewed in November 1998, the Board pointed out that the rating criteria which applied to the veteran's service-connected psychiatric disorder had been amended during the course of the appeal. The case was remanded in order to afford the veteran the opportunity to have the most favorable rating criteria applied to his disability. White v. Derwinski, 1 Vet. App. 519, 521 (1991). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board also noted that the veteran had not been afforded a VA examination in connection with his claim. It was contemplated that the VA examination undertaken on remand would include findings consistent with both the new and old rating criteria. The Board notes, however, that for reasons discussed within, the examination and subsequent addendum are not adequate for rating purposes and the case must be remanded a second time. 38 C.F.R. § 4.2 (1999). The report of a March 1999 VA examination included the examiner's comment that the veteran endorsed many symptoms of chronic dysthymia and fit the criteria for major depressive episode, recurrent. The examiner assigned a Global Assessment of Functioning (GAF) score of 40 to 50 on Axis V. In a July 1999 addendum to that report, the examiner noted that the claims folder had not been available at the time of the original examination, but had since been reviewed. The examiner indicated, however, that he was unable to reconcile his findings with a diagnosis of anxiety neurosis with depression. The examiner further commented that, after reviewing both the claims folder and the examination notes and findings, there was nothing found to support a diagnosis of anxiety neurosis or anxiety disorder, with or without depressive symptomatology. It was felt that the findings supported the diagnoses of chronic dysthymia and rule out major depressive episode. In addition, the examiner observed that there was "significant" evidence to support a diagnosis of antisocial personality traits which would also support many of the symptoms that the veteran had presented with over the course of the years. The preeminent psychiatric diagnosis was considered to be chronic dysthymia and the GAF score "based on that diagnosis and that diagnosis alone would probably be 50 to 60 as opposed to 40 to 50." The Board notes that there is a general tendency towards caution in rating a disability where there is a change in diagnosis. 38 C.F.R. § 4.13. If the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination. 38 C.F.R. § 4.125. In the present case, the most recent VA examination included a change in diagnosis. In addition, the examiner assigned a higher GAF score to the newer diagnosis, presumably characterizing the effects of that disorder as less disabling than the diagnosis for which the veteran is seeking an increased rating. Thus, the Board finds that the change in diagnosis requires clarification before the veteran's service-connected disability is rated. On remand, the RO must determine what the change in diagnosis represents. In addition, the RO should afford the veteran a new examination which addresses the severity of the veteran's disorder, relative to both the previous and new rating criteria. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. As such, the Board finds that the case is not ready for appellate review and must be remanded for further development. Finally, the Board notes that in January 1999 the veteran submitted a signed authorization to release information which noted recent VA psychiatric treatment. It does not appear that those records have been associated with the claims folder. Records of any current treatment of the disability for which the veteran is seeking increased compensation may be highly probative with respect to his appeal. The duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining treatment records to which the veteran has referred. Littke v. Derwinski, 1 Vet. App. 90 (1990). Thus, VA must attempt to obtain those records to which the veteran has referred before any final action may be taken by the Board. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should take appropriate steps to contact the veteran in order to obtain the names and addresses of all medical care providers who treated him for psychiatric symptomatology since January 1999. After securing the necessary release, the RO should attempt to obtain copies of all records from the identified treatment sources, including those noted in the January 1999 release form. 2. The veteran should be afforded a VA psychiatric examination to evaluate the severity of the service-connected anxiety neurosis with depression. Complete psychological tests should be conducted, if deemed necessary. The claims folder and copies of the old and new criteria for rating mental disorders should be made available to the examiner for review. Based on the examination and study of the case, the examiner should enter a complete multiaxial evaluation, including a score on the Global Assessment of Functioning scale of Axis V along with an explanation of the significance of the assigned score. It is suggested that the examiner first report findings under the old criteria and then separately under the new criteria. A complete rationale for all opinions expressed must be provided. In the event that examination reveals the presence of any other psychiatric or mental disorder, in addition to the service-connected anxiety neurosis with depression, such should be identified and its symptoms should be clearly distinguished, to the extent possible, from those attributable to the service- connected anxiety neurosis with depression. It should be noted whether any other disorder found represents progression of the service-connected anxiety neurosis with depression, correction of an error in the prior diagnosis or development of a new and separate condition. The examiner should comment on the March 1999 VA examination and July 1999 addendum which noted that there did not seem to be any support for a diagnosis of anxiety neurosis with depression. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be taken. 4. Thereafter, the RO should again review the veteran's claim for increase, consider both the old and new rating criteria and apply that most favorable to the veteran. The RO should discuss the significance of any change in diagnosis, with reference to 38 C.F.R. §§ 4.13 and 4.125(b). If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. BARBARA B. COPELAND 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).