BVA9501189 DOCKET NO. 93-07 276 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder (hereinafter PTSD), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran had active military service from November 1963 to March 1971. This matter comes before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a July 1992 rating decision by the St. Petersburg, Florida Regional Office (hereinafter RO) which granted service connection and assigned a 10 percent evaluation for PTSD. REMAND The Board acknowledges that 38 C.F.R. § 20.1304 provides, in relevant part, that an appellant will be given 90 days following the mailing of the notice of certification of appeal and transfer of records to submit additional evidence. This regulation further requires that any additional evidence be submitted directly to the Board and not to the agency of original jurisdiction. Our review of the record indicates that a notice was mailed to the appellant on March 31, 1993, informing him that his appeal had been certified to the Board for appellate review. Thereafter, private and Department of Veterans Affairs (VA) clinical reports were received at the RO in April 1993. Following processing at the RO, the evidence was forwarded to the Board in June 1993. Although we find that the new evidence was timely submitted pursuant to 38 C.F.R. § 20.1304, these records will have to be returned to the RO. This action is taken to ensure that the veteran is accorded his due process rights in accordance with 38 C.F.R. § 20.1304, which also provides that all evidence accepted by the Board must be referred to the RO for review unless this procedural right is waived in writing by the appellant. We note that no such waiver is of record. Consequently, this evidence must be referred to the RO prior to the Board's appellate consideration of the evidence in question. As noted above, the RO determined in July 1992 that the veteran suffers from PTSD which is due to his active military service. Clinical evidence received after the initial rating action confirms the presence of symptomatology commonly associated with PTSD, but also describes other psychopathology which may or may not be related to the veteran's service-connected psychiatric disorder. In this regard, specific reference is made to the clinical findings noted in the report of an April 1993 Minnesota Multiphasic Personality Inventory (MMPI) conducted by a VA psychiatric social worker. While the MMPI revealed the presence of symptoms attributable to PTSD, evaluation for other psychiatric disorders, such as schizophrenia and depression also yielded positive results. The April 1993 MMPI did not include any explanation regarding the interrelationships, if any, between other existing psychiatric disorders and the veteran's PTSD, and the extent to which his service-connected psychiatric disorder may be affected by other neuroses or psychoses. In view of the multiple psychiatric diagnoses revealed by recent clinical evidence, it would be appropriate for a Board of two psychiatrists to review the entire record and examine the veteran. The objective is to obtain clarifying data as to the nature of the veteran's PTSD, including a determination of what psychiatric symptomatology is directly attributable to PTSD, which, in turn, will enable the VA to accurately assess the current severity of his service-connected psychiatric disorder. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (1993). The Court of Veterans Appeals has held that the VA's duty to assist the veteran in obtaining and developing facts and evidence to support his claim also includes obtaining adequate examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). Accordingly, this case will be REMANDED to the RO for the following: 1. In the event the veteran has received recent private or VA treatment for his service-connected psychiatric disorder, up-to-date records of such treatment should be secured and made a part of the claims folder. 2. The veteran should be afforded a social and industrial survey by a VA social worker, in accordance with the Physician's Guide, for the purpose of determining to what extent the veteran's employability is impaired by his service- connected psychiatric disorder. The social worker's report should include an assessment of the veteran's employment history and day-to-day functioning. The veteran's claims folder should be made available to the social worker prior to the evaluation. 3. The veteran should be accorded a psychiatric examination by a Board of two psychiatrists in order to determine the correct diagnosis(es) in this case. As well, the examiners should ascertain the severity of the veteran's service- connected PTSD, to include its effects on his social and industrial adaptability based on the entire clinical history of the disorder. The veteran's claims file should be made available to the psychiatrists for review so that they may familiarize themselves with the clinical history of the veteran's service-connected psychiatric disorder. All appropriate tests should be undertaken, and the examination should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations (Physician's Guide). The psychiatrists' reports should detail the veteran's current psychiatric symptomatology. Specifically, the reports should indicate the extent to which the psychoneurotic symptoms result in the reduction of initiative flexibility, efficiency, and reliability levels, in accordance with the diagnostic criteria found in Diagnostic Code 9411 of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). Additionally, the symptomatology directly attributable to the service-connected PTSD should be fully discussed, and the presence of any other existing psychiatric or other mental disorders should be evaluated. To the extent possible, symptoms attributable to any psychiatric disorder considered not to be part and parcel of PTSD should be distinguished from those associated with PTSD. The relationship of those other disorders, if any, to the veteran's PTSD should also be fully analyzed. 4. When the requested development has been completed, the RO should review the veteran's claim including the submission from the VA Vet Center, dated in April 1993, which was forwarded directly to the Board. If the decision on the issue on appeal remains adverse to the veteran, both he and his representative should be issued a supplemental statement of the case and afforded the requisite 60 days within which to respond. 38 C.F.R. § 20.302(c) (1993). Thereafter, subject to current appellate procedure, the veteran's claim should be returned to the Board for further appellate consideration, if in order. The purpose of this REMAND is to procure clarifying data and to ensure due process of law. N. R. ROBIN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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) (1993).