Citation Nr: 0005912 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 92-22 884A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from January 1965 to April 1967. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco and Oakland, California, which granted service connection for PTSD, evaluated as 10 percent disabling effective February 6, 1991. In a September 1993 rating determination, the 10 percent rating was increased to 30 percent, also effective from February 6, 1991. This rating remains in effect. The veteran's representative has raised the issue of the veteran's entitlement to a total rating for compensation based on individual unemployability. This issue has not been adjudicated by the RO. Where the veteran raises a claim that has not yet been adjudicated, the proper course is to refer that issue to the RO. Bruce v. West, 11 Vet. App. 405 (1998). This issue is, accordingly, referred to the RO for adjudication. REMAND A veteran's assertion that the disability has worsened serves to render the claim for increase well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In the instant case the veteran is technically not seeking an increased rating, since his appeal arises from the original assignment of a disability rating. However, when a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the veteran's claim is well grounded. In statements dated in February 1996 and 1997, Albert Lerner, Ph.D., reported that he had been providing psychiatric treatment to the veteran since 1991. Where a medical professional reports treatment, VA has an obligation to seek copies of the reported treatment records. Mason v. Brown, 8 Vet. App. 44 (1995). The reported treatment records from Dr. Lerner have not been obtained, although it appears that the veteran has signed a release for the RO to obtain this information. The veteran has been afforded a number of VA psychiatric examinations during the course of this appeal. The examiner has assigned the veteran a GAF score of 45, but has not expressed an opinion as to the severity of the veteran's PTSD, as distinct from his non-service connected personality disorder. VA regulations provide that where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (1996); see 38 C.F.R. § 19.9 (1996). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The record reveals that the veteran was scheduled for a psychiatric examination in July 1999, but failed to report. The Board also notes that this examination was to be conducted by an examiner other than the physician who had conducted the most recent evaluations. In his informal hearing presentation from February 2000, the veteran's service representative requested that another examination be scheduled. The Board notes that it is incumbent upon the veteran to submit to a VA examination if he is applying for VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). As this appeal involves an original claim with regard to the veteran's PTSD, the governing regulation provides that where a claimant fails to report without good cause for a scheduled examination, the claim will be reviewed based upon the evidnece of record. 38 C.F.R. § 3.655(b) (1999). Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant or death of an immediate family member. 38 C.F.R. § 3.655(a) (1999). The RO has informed the veteran of the provisions of 38 C.F.R. § 3.655. Accordingly, while the Board regrets the delay, this claim is REMANDED for the following: 1. The veteran should be asked to provide information as to any treatment he has received for PTSD since September 1997. The RO should then attempt to obtain these records as well as all records of treatment by Dr. Lerner. If the RO is unable to obtain any private treatment records, it should tell the veteran and his representative of the negative results, so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159(c) (1999). If the veteran reports receiving VA treatment, the RO must obtain all referenced records. 2. The examiner who conducted the September 1997 VA examination should be requested to express an opinion as to the severity of the veteran's PTSD, as distinct from the non-service connected personality disorder. 3. After obtaining as many of the above records as possible or providing the veteran an opportunity to respond and/or submit records, the RO should schedule him for a VA psychiatric examination. The claims folder and a copy of this remand must be made available to and be thoroughly reviewed by the examiner prior to the examination. The veteran is advised that the result of failing to report for examination without good cause, could be denial of his claim for increase. This examination should, if possible, be conducted by a physician who has not examined the veteran before. In requesting that the examination be scheduled, the RO should assure that the VA medical center has the veteran's current address of record. The VA medical center making arrangement for the examination should provide the RO sufficient written documentation to confirm that notice was sent, the date notice was sent, and the address to which notice was sent. Such documentation is to be placed in the claims folder. It is requested that a GAF score be assigned consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV), including an explanation of what the assigned code means. Second, it is requested that the VA examiner discuss the prior medical evidence regarding the veteran's service- connected PTSD and reconcile any contradictory evidence regarding the level of the veteran's occupational impairment and any prior medical findings. After review of the claims file, the examiner should answer the following question: Which of the veteran's symptoms and what degree of social and occupational impairment is attributable to the service- connected PTSD as opposed to any nonservice-connected conditions (i.e., personality disorders or alcohol abuse)? If it is impossible to distinguish the symptomatology and/or social and occupational impairment due to the nonservice-connected condition(s), the examiner should so indicate. The examination report must include the medical rationale for all opinions expressed. 3. Following completion of the above, review the claims folder and ensure that the examination report includes fully detailed descriptions of all opinions requested. If it does not, it should be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). 4. The RO should readjudicate the veteran's claim of entitlement to assignment of an initial disability evaluation in excess of 30 percent for service-connected PTSD, under both the old and the current VA regulations for rating mental disorders, determine which set of regulations is more favorable to the veteran, and apply the one more favorable to the case. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996), amended by 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999); VAOPGCPREC 11-97 at 1; Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). See also, Rhodan v. West, 12 Vet. App. 55 (1998). If the benefit sought on appeal remains denied, provide the veteran and his representative a supplemental statement of the case. If the veteran has failed to report for an examination, citation of 38 C.F.R. § 3.655 should be included. Allow an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is so informed. The purpose of this REMAND is to afford due process. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. Mark D. Hindin 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).