Citation Nr: 0004580 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 94-28 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE The propriety of the initial noncompensable rating assigned for the veteran's service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from July 1969 to April 1972, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for PTSD and assigned a noncompensable evaluation, effective August 21, 1992. The veteran timely appealed to the Board the initial rating assigned for his PTSD. When this matter was previously before the Board in March 1997, it was remanded for further development and adjudication. In written argument dated in January 1997, the veteran's representative noted the veteran's wartime service and the medical evidence showing that he was unemployable and asserted that the veteran was entitled to a grant of nonservice-connected pension benefits. In addition, in written argument dated in December 1999, the veteran's representative asserted that, if a total schedular rating for his service-connected PTSD were not established, the evidence supports the grant of a total disability rating based on individual unemployability due to service-connected disability. To date, neither of these claims have been considered and they are referred to the RO for appropriate action and development. Because the veteran has disagreed with the initial rating assigned for his PTSD, the Board has recharacterized the issue as involving the propriety of the initial evaluation assigned, in light of the recent decision of the United States Court of Veterans Appeals (now known as United States Court of Appeals for Veterans Claims) (Court) in Fenderson v. West, 12 Vet. App. 119, 126 (1999). REMAND The Board has carefully reviewed the claims file and finds that, unfortunately, the claim must again be remanded, even though this action will, regrettably, further delay a decision in this appeal. The veteran essentially contends that he is totally disabled, both socially and industrially, due to his service-connected PTSD. In this regard, the Board observes that, pursuant to the Board's remand instructions, in July 1998, the veteran was afforded a VA psychiatric examination. The report indicates that the physician interviewed the veteran and reviewed the medical evidence in the claims folder prior to the preparation of his report. As pointed out by the veteran's representative, in the July 1998 examination report, the examiner opined that the veteran's PTSD was productive of total disability. By contrast, he commented that the veteran's undifferentiated type schizophrenia (schizophrenia) was not currently actively delusional. In addition, he assigned a Global Assessment of Functioning (GAF) Score for this disability of 45; a GAF score of 40 was assigned for his nonservice-connected schizophrenia. Subsequent to his review of the July 1998 examination report, the adjudication officer at the RO wrote a memorandum to that examiner requesting that he again review "the entire claims folder" and prepare an addendum to his report. The adjudication officer asserted that the examiner's opinion was inconsistent with the medical evidence and that his finding the veteran's PTSD had worsened appeared to be based on "subjective information supplied by the veteran." In doing so, the adjudication officer requested that, if the July 1998 examiner continued to believe that the veteran's PTSD had worsened and that it was his "predominant" psychiatric disability, he should indicate when it became the predominant disability "as all other medical evidence in the file indicates that the veteran's psychosis has been the predominant illness"; the adjudication officer also requested that the physician distinguish the symptoms attributable to each disability. In compliance with the adjudication officer's request, the examiner again reviewed the evidence in the claims folder and thereafter prepared a February 1999 addendum to his July 1998 report. In that addendum, the examiner reiterated his prior Axis I diagnoses of PTSD and undifferentiated type schizophrenia; he also added an Axis I diagnosis of gender dysphoria. The examiner reported, however, that the symptomatology attributable to the veteran's PTSD had been dormant, "with no evidence of recent complaints of a flare- up of the flashbacks and nightmares and none addressed in therapy." By contrast, the examiner indicated "Symptoms attributable to schizophrenia are the patient's frequent complaints of receiving a feeling of being 'anointed' and 'receiving a calling from God." He also noted that the veteran made claim that he was a priest. The examiner explained that these symptoms represented "obvious distortion" in reality testing and were symptomatic of schizophrenia rather than PTSD. Notwithstanding the examiner's comments, the report reflects that he again assigned GAF scores for his PTSD and schizophrenia of 45 and 40, respectively; he also assigned, for the first time, a GAF score of 50 for the veteran's gender dysphoria. In this regard, the Board observes that, according to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF score of 45 indicates reflects some impairment in reality testing or communication (e.g., speech is at times illogical obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., avoids friends, neglects family, and is unable to work). As such, although the examiner reaffirmed the GAF scores that he assigned for the veteran's PTSD and schizophrenia, he offered a markedly contrasting view of the disability picture attributable to the veteran's PTSD and schizophrenia. In this regard, the Board notes that, citing to the Court's decision in Bielby v. Brown, 7 Vet. App. 260 (1994), in written argument dated in December 1999, the veteran's representative essentially maintains that the evidence contained in the February 1999 addendum to the July 1998 VA psychiatric examination report is tainted and implies that it should thus be disregarded by the Board. In support, his representative contends that the November 1998 memorandum from the adjudication officer "allows personal feelings to intrude and all but suggests the answer the examiner should provide." In addition, in his December 1999 written presentation, the veteran's representative notes that, in August 1990, the RO received the veteran's application to reopen a claim for service connection for schizophrenia. He added that, although the RO subsequently received and granted service connection for PTSD, his claim for service connection for schizophrenia has remained open since that time. In the December 1999 presentation, his representative further argued that service connection for schizophrenia was warranted not only on a direct incurrence basis, but alternatively, on a secondary basis, citing to the Court's decision in Allen v. Brown, 7 Vet. App. 439 (1995). In Allen, the Court, interpreting 38 C.F.R. § 3.310(a), held that service connection was available for the degree of impairment resulting from aggravation of a nonservice-connected disability by a service-connected disorder. Thus, the RO must consider whether the veteran's service-connected PTSD caused or aggravated his schizophrenia. The record shows that, during the course of this appeal the RO has not considered whether service connection for schizophrenia, on either a direct or a secondary basis, is warranted. In this regard, the Board concludes that because both psychiatric disabilities are evaluated using the same criteria, and in light of the fact that a determination as to the relative severity of each disability is required in order to rate the service-connected disability, the service connection issue is inextricably intertwined with the veteran's claim regarding the propriety of the initial noncompensable evaluation assigned for his PTSD. As such, the service connection issue initially must be resolved, and thus the Board's consideration of the PTSD claim at this time would be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The RO should also consider the schizophrenia claim in the first instance to avoid any prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, a review of the record suggests that pertinent service medical records may be absent from the claims folder. The claims folder shows that the veteran had consecutive periods of service, from July 1969 to May 1970 and from May 1970 to April 1972. In addition, the Board agrees with the veteran's representative that the records relating to his "first" period of service, including the report of his service entrance examination, have apparently not been associated with the claims folder. In addition, as further pointed out his representative, the report of veteran's Report of Medical History at service separation, dated in March 1972, reflects that the veteran indicated that he was hospitalized for psychiatric problems at the 95th Evacuation Hospital (95th EVAC) in the Republic of Vietnam from January 12 to January 19, 1970; however, no report relating to this period of in-service hospitalization is of record. Further, a January 14, 1971 memorandum in the claims folder indicates that the veteran was hospitalization for psychiatric observation from January 11 to January 14, 1971; the corresponding hospitalization report is also not of record. Moreover, an in-service hospitalization report, which reflects that the veteran was hospitalized on an emergency basis on January 23, 1971, shows that he had been hospitalized at the mental hygiene clinic that facility on three prior occasions; the only in-service hospitalization report of record relates to his treatment at that facility from January 26 to February 3, 1971. To date, VA has not requested that these outstanding records, which must be obtained and associated with the claims folder, and that action must be accomplished prior to the Board's further consideration of this issue. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). In addition, in Hayre, the Federal Circuit held that where pertinent service medical records were not of record, that deficiency, which the Federal Circuit indicated constituted a breach of VA's duty to assist, resulted in the prior determination not becoming final for the purposes of appeal. Id. at 1334. In addition, it appears that pertinent VA and private treatment records have also not been associated with the claims folder. In this regard, in several statements, the veteran reported that he was treated for psychiatric disability at the Leavenworth, Kansas, VA Medical Center from 1983 to 1987; however, records from that facility, dated subsequent to October 1985, have not been associated with the claims folder. In addition, records dated subsequent to June 1998, from the VA Medical Center in Kansas City, Missouri, are likewise not of record. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466- 67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition, when the veteran filed his claim for service connection for PTSD in August 1992, he indicated that he had received treatment for psychiatric problems from a Dr. Roderick of Claycomo, Missouri, from 1975 to 1977, and from Dr. John Williams of Liberty, Missouri, from 1977 to 1983. As such, the RO must also attempt to obtain and associate these records. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Under the circumstances, the Board finds the medical evidence of record is not sufficient to accurately assess the extent and severity of the veteran's PTSD and determine its relationship to his schizophrenia. As such, the Board also finds that, after all outstanding in-service and post-service treatment records are associated with the claims file, a contemporaneous and thorough VA psychiatric examination (that takes into account the records of the veteran's prior medical history, and especially the medical evidence discussed above), is required to clarify the nature and extent of the veteran's service-connected psychiatric disability. See Colayang v. West, 12 Vet. App. 524, 532 (1999); Goss v. Brown, 9 Vet. App. 109, 114 (1996). In the examination report, the psychiatrist who should, to the extent possible, distinguish symptoms attributable to PTSD from other diagnosed psychiatric disorder(s) and assign and explain the meaning of a GAF Score for the veteran's overall psychiatric impairment, and explain the percentage or degree of impairment of that score that represents impairment due solely to PTSD, as well as whether any other diagnosed psychiatric disorder is related to his PTSD, i.e., schizophrenia. If the examiner is not able to distinguish the symptoms/degree of impairment due to PTSD from any other diagnosed psychiatric disorder, the RO should consider the decision of the Court's decision in Mittleider v. West, 11 Vet. App. 181 (1998) (prescribing that, under such circumstances, the reasonable doubt doctrine dictates that all psychiatric symptoms be attributed to the service- connected disability), in the adjudication of the claim. As a final point, in the March 1997 remand, the Board pointed out that, effective November 7, 1996, VA revised the criteria for diagnosing and evaluating psychiatric disabilities, to include PTSD. 61 Fed. Reg. 52,695 (1996). The Board explained that where the 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 applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In this regard, the Board pointed out that the RO had not considered the claim under the revised criteria. However, in the RO's sole post-remand readjudication the claim in April 1999, it considered the claim pursuant to the former criteria only. As such, on remand, the RO must consider the claim pursuant to the revised criteria since the grant of service connection, and since November 7, 1996, under the revised criteria, applying whichever is more favorable to the veteran. See DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). In addition, pursuant to Fenderson, the RO should also consider whether "staged rating" is appropriate. In light of the foregoing, the Board is REMANDING the case for the following actions: 1. The RO should use all available resources, to include the assistance of the National Personnel Records Center (NPRC) and the Department of the Army (Army), to obtain any of the veteran's service medical and hospitalization records not already associated with the claims folder. This should specifically include any service medical records dated during the veteran's initial period of service, to specifically include his service entrance examination, as well as records of treatment for the veteran's psychiatric problems at the 95th EVAC. If the veteran's records are not available, the NPRC and the Army should state that and that fact should clearly be documented in the claims file. 2. The RO should obtain and associate with the claims file all outstanding post-service records of treatment of the veteran. This should specifically include any outstanding records, dated since October 1985, from the VAMC in Leavenworth, Kansas; from the VA Medical Center in Kansas City, Missouri, dated since June 1998; from a Dr. Roderick of Claycomo, Missouri, dated from 1975 to 1977; dated from Dr. John Williams of Liberty, Missouri, from 1977 to 1983; and from any other facility or source identified by the veteran. The aid of the veteran and his representative in securing such records, to include providing necessary authorizations, should be enlisted, as needed. If any such records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 3. After associating with the claims file all available records received pursuant to the above-requested development, the RO should schedule the veteran to undergo a comprehensive VA psychiatric evaluation by a VA psychiatrist, if possible, who has not previously examined the veteran, to determine the nature and severity of all psychiatric disabilities found to be present, to include his service-connected PTSD currently, and if at possible, since the date of the grant of service connection in August 1992. In addition, if the examiner diagnoses the veteran as having schizophrenia, the examiner should offer an opinion as to whether it is at least as likely as not that the veteran's schizophrenia had its onset during his period of military service or within one year of his discharge. The examiner should also offer an opinion as to whether it is at least as likely as not that the veteran's schizophrenia was caused or aggravated by his service- connected PTSD. The Board emphasizes that the purpose of this evaluation is to reconcile the conflicting medical evidence of record and thus aid in the adjudication of the veteran's claim regarding the propriety of the current rating assigned for his PTSD and his raised claim for service connection for schizophrenia. It is imperative that the physician who is designated to examine the veteran reviews all the pertinent evidence in his claims folder, including a complete copy of this REMAND and all medical evidence and opinions of record. All appropriate tests and studies should be conducted, and all clinical findings and diagnoses should be reported in detail. After an examination of the veteran and a comprehensive review of his claims file, the physician should offer a written report that includes a multiaxial diagnosis (reflecting all psychiatric disabilities found to be present on Axes I and II), as well as Global Assessment of Functioning (GAF) score (currently, and, if possible, from 1992 and in intervening years) and an explanation of what the score means (on Axis V). If more than one disability is diagnosed, the examiner should comment upon the relationship between each other diagnosed disability, i.e., schizophrenia, and service-connected PTSD, to include whether it is possible to separate the symptomatology attributable to and effects of schizophrenia from PTSD, and, if so, the percentage of the GAF score representing impairment due each psychiatric disability. The examiner should also offer an opinion concerning the impact of the veteran's service- connected PTSD, and if the examiner is of the opinion that the veteran's schizophrenia had its onset during service or within one year of his discharge, or was caused or aggravated by his service-connected PTSD, his schizophrenia, on his ability to obtain and retain substantially gainful employment (currently and, if at all possible, since 1992 and in the intervening years). All examination findings, along with the complete rationale underlying each conclusion drawn or opinion expressed should be set forth in a typewritten report. In commenting upon the degree of impairment since the date of the grant of service connection in August 1992, the examiner should incorporate discussion of the pertinent medical evidence of record, to specifically include the July 1998 VA psychiatric examination report and the February 1999 addendum to that report. 4. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any requested action is not undertaken, or is deficient in any manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completion of the above development (and after undertaking any additional development deemed warranted by the record), the RO should consider whether service connection is warranted for schizophrenia, to include whether his schizophrenia was caused or aggravated by his service-connected PTSD. See Allen v. Brown, 7 Vet. App. 439 (1995). If service connection for schizophrenia is established, after considering the severity of the veteran's PTSD since the grant of service connection, the RO should assign a single disability evaluation for the veteran's psychiatric disability. If service connection for schizophrenia is not established the RO should readjudicate the issue of the propriety of the initial noncompensable evaluation assigned for his PTSD on the basis of all pertinent evidence of record and all pertinent legal authority. In addition, the RO must evaluate the disability under the former criteria during the entire course of the appeal and, since November 7, 1996, pursuant to the revised criteria. In doing so, the RO should determine whether staged rating is appropriate in light of the Court's decision in Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); and consider whether it is possible to separate the effects of any service-connected and nonservice-connected disabilities, pursuant to Mittleider v. West, 11 Vet. App. 181 (1998). The RO should provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that are noted in this REMAND. 6. If the benefits sought by the veteran continue to be denied, he and his representative must be furnished a Supplemental Statement of the Case (SSOC) and given an opportunity to submit written or other argument in response before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). 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) (1999).