Citation Nr: 0003235 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 95-33 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from December 1960 to November 1962 and from December 1962 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for PTSD and assigned a 50 percent evaluation, effective from November 1989, excluding a period of hospitalization in May 1990, for which a temporary total (100 percent) evaluation was awarded. The veteran appealed the 50 percent initial evaluation awarded. The Board, in a December 1997 decision, denied entitlement to an evaluation in excess of 50 percent. The veteran appealed the December 1997 Board decision to the United States Court of Appeals for Veterans Claims (Court) (formerly, the United States Court of Veterans Appeals). In June 1999, the Court vacated the December 1997 Board decision which denied an evaluation in excess of 50 percent for PTSD, and, by memorandum decision, remanded the claim to the Board. The issue of the evaluation of PTSD has remained on appeal continuously since the veteran's claim for service connection for PTSD was submitted in November 1989, and since service connection was first granted, in September 1994, and thus, the appeal concerns the initial evaluation assigned for PTSD. The issue on appeal is more accurately stated as described on the title page of this decision. REMAND In the June 1999 memorandum decision, the Court indicated that further development of the veteran's claim was required prior to final appellate review by the Board. In particular, the Court noted that the veteran was entitled to a contemporaneous examination as to the severity of his service-connected PTSD, and was entitled to an examination which distinguishes between service-connected and non- service-connected disorders, so that a disability evaluation may be fairly assigned, including determining the effects of each disorder on employability. VA medical Examination in compliance with the Court's order must be obtained. The Court further observed that the examiner who conducted a February 1997 VA examination provided an opinion as to the level of disability compensation the veteran should be awarded. The Court stated that a medical examination which provided an opinion as the appropriate level of disability compensation rather than a medical opinion regarding medical symptomatology is an inadequate examination. The Board notes that, subsequent to the RO and Board decisions in this case, the Court determined that, when an appeal arises from an initial rating decision which established service connection and assigned the initial disability evaluation, the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The RO should consider, on remand, whether the criteria are met for an increased evaluation during any portion of the initial rating period. Since the initial period following the grant of service connection has not been terminated, additional VA or private records created since records were last associated with the file are relevant to the veteran's current evaluation, and should be obtained. The Board further notes that 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). In light of the foregoing, the Board finds that further development, as specified below, is warranted. Accordingly, the case is REMANDED for the following development: 1. The RO should contact the veteran and have him identify (names, addresses and dates) all sources of VA or non-VA psychiatric treatment since February 1997, as well as any pertinent medical evidence prior to that time which is not yet associated with the claims file. The RO should then secure copies of all identified records not already on file and associate them with the claims folder. 38 C.F.R. §3.159 (1999). 2. After all attempts to obtain additional clinical or other records have been completed, the veteran should be afforded a VA psychiatric examination. The claims file should be made available to the examiner for review. All indicated tests should be conducted. The examiner should describe the current symptoms and severity of service- connected PTSD. The examiner should also describe the current symptoms and severity of any other psychiatric disorder present, to include a personality disorder. The examiner should, to the extent possible, distinguish the symptoms of and degree of impairment due to PTSD from a personality disorder or any other psychiatric disorder that may be present, to include assigning a GAF scale score for impairment due solely to PTSD. 3. The RO should then reajudicate the veteran's claim for an initial evaluation in excess of 50 percent for PTSD. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case, and the veteran and his representative should be provided with a reasonable opportunity to respond. The case should then be returned to the Board for appellate review. The purpose of this remand is to ensure a complete record for appellate review. The Board intimates no opinions as to the eventual determination to be made. The veteran is free to submit additional evidence in support of his claims. 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. R. F. WILLIAMS 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).