Citation Nr: 0007400 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-02 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel REMAND The veteran had active duty from September 1979 to January 1981. In addition he had one year, six months and twenty-two days of prior active service. The veteran seeks a total disability evaluation based on individual unemployability due to his service-connected disabilities. The record shows that the veteran has two service connected disabilities; schizophrenia rated as 70 percent disabling and allergic rhinitis is rated as 10 percent disabling. The appellant essentially contends that he cannot work due to symptoms associated with his service-connected disabilities. He argues that these disorders are of such severity as to render him unemployable. In support of his contention, there are VA treatment records dated May 1996 to June 1998; a January 1997 VA mental disorders examination; a RO hearing transcript dated May 1998 and a June 1998 VA mental disorders examination. VA treatment records, dated May 1996 to June 1998 show follow up at the mental hygiene clinic and the objective findings show that the veteran was oriented with a depressed mood. His memory and concentration were good. The veteran's judgment was poor and his insight was fair. He speech was coherent and relevant and he related paranoid delusions and low self-esteem. The veteran was not homicidal or suicidal and there were no hallucinations. The January 1997 VA mental disorders examination revealed that the veteran was alert and oriented to time, place and person. His mood was anxious and his effect was constricted. The veteran's attention, concentration and memory were good. His speech was clear and coherent and he was not hallucinating. The veteran was not suicidal or homicidal and his insight and judgment were fair. He exhibited good impulse control. The examiner determined that the veteran was competent to handle his funds. The diagnoses were schizophrenia, residual type and substance use disorder: Cocaine, heroin and alcohol abuse, in alleged remission. The Global Assessment of Functioning (GAF) Score was deferred. In April 1998 the veteran was hospitalized with complaints of auditory and visual hallucinations, seeing people coming out of the wall. On admission he was found with a sad facial expression. His speech was logical, coherent and relevant. The veteran's mood was depressed and his affect was appropriate. He expressed suicidal ruminations, poor concentration and poor judgment. While hospitalized the veteran had episodes of hearing voices and at times had insomnia. Although he improved during the hospitalization the prognosis was poor due to his nervous disorder and his physical condition. At the May 1998 RO hearing the veteran's representative argued that the veteran was unemployable due to his service connected nervous disorder. The veteran's wife testified that they had been married for the past 5 years and in her opinion his condition had not improved. She reported that sometimes he remained in one place as if her were lost in space and was not bothered by anything. She stated that during the day at home he sometimes watched the same picture several times and that he was unable to keep a coherent conversation or deal with his own children. The veteran's wife testified that he tried to work without success and was unable to follow orders. The June 1998 VA mental disorders examination showed the veteran to be hypoactive and he accepted that he came under effects of medication. The veteran alleged that he did this because he had been unable to sleep adequately the night before. His speech was somewhat slurred and definitely his psychomotor was retarded. Although his answers were relevant and coherent in many instances he really did not make an effort to respond and he basically stated that he did not know or that he could not remember. The veteran described variable symptoms, referential ideas, and poor frustration tolerance at times with some aggressive and self-destructive ideas. He was not considered actually suicidal or overtly homicidal. The affect was flat and the mood was hypoactive secondary to medication effects. He was oriented and is memory was inadequately evaluated because he really was not making an effort. His intellectual functioning was average. The veteran's judgment was fair and is insight was poor. The veteran was last afforded a VA mental disorders examination for purposes of evaluating his service-connected schizophrenia in June 1998. The examiner noted that the veteran was mentally competent to handle VA funds. The diagnoses were schizophrenia, residual type with some depression; substance use disorder: cocaine and heroin abuse by records and history, in alleged remission; and strong borderline and antisocial personality characteristics. His GAF score was 55. The Board finds that the aforementioned VA records and examination reports failed to give any medical opinion as to the veteran's employability. The Court of Appeals for Veterans Claims (Court) specifically stated in Friscia v. Brown, 7 Vet. App. 294 (1994), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994), that where VA has merely offered its own opinion regarding whether a veteran is unemployable as a result of a service-connected disability, VA has the duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service- connected disability has on his ability to work. The Court pointed out in Cathell v. Brown, 8 Vet. App. 539 (1996), that the Board has the duty to differentiate between the veteran's service- connected medical conditions and nonservice- connected conditions when discussing the veteran's employability status. In addition, if he is found to be unemployable, a medical opinion is required as to whether this is solely due to his service-connected disabilities of schizophrenia and allergic rhinitis, or was also related to any other disabilities that the veteran may have. In order to clarify the veteran's disability picture, the Board concludes that a medical opinion is required. The examining physician should also address the extent of functional and industrial impairment solely attributable to the veteran's service-connected disabilities. The Board must also be able to assess the effect, if any, that the veteran's non-service connected disabilities, as opposed to his service-connected disabilities, have on his ordinary activities, including employment. 38 C.F.R. § 4.16(b) (1999). To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should schedule a social and industrial survey. The veteran's current street address and location should be verified, and the survey should be coordinated with the appellant. To the extent there is an attempt to complete the survey that is unsuccessful, the claims folder should contain documentation of the attempts made, and the reason for the failure to complete it. 2. The veteran's claims file should be forwarded to the examiner that conducted the June 1998 VA examination. The examiner should specifically be asked to review the evidence of record prior to formulating his/her opinion regarding the veteran's ability to obtain and maintain gainful employment. In the event that the examiner determines that the veteran is unemployable, he/she must express an opinion as to whether the reason for his inability to obtain and maintain a substantially gainful occupation is the result of his service-connected disabilities and not the result of his nonservice-connected disabilities. 3. Following completion of the above actions, the RO must review the claims folder and additional evidence, and ensure that all of the forgoing development have been conducted and completed in full. If any development is in complete, appropriate corrective action is to be implemented. 4. The RO should then readjudicate the issue of entitlement to a total rating for individual unemployability. Consideration should be afforded to all applicable laws and regulations. In the event the benefit sought is not granted, the appellant and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate time to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. C. P. RUSSELL 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).