BVA9502041 DOCKET NO. 93-03 782 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to an effective date earlier than May 13, 1991, for the award of service connection, and in turn eligibility for compensation benefits for a post-traumatic stress disorder (PTSD). 2. Entitlement to an increased rating for PTSD, currently evaluated as 70 percent disabling. 3. Entitlement to service connection for alcohol dependence, claimed as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, attorney ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from January 1965 to February 1968. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from the October 1991 rating decision, by which service connection was established for PTSD. A 100 percent rating was assigned from May 13, 1991, for a period of hospitalization for PTSD under 38 C.F.R. § 4.29 (1993), and a 30 percent schedular rating was assigned from July 1, 1991. By a March 1992 rating, the RO granted a 100 percent rating for hospitalization effective December 30, 1991 under 38 C.F.R. § 4.29, and a 50 percent rating from March 1, 1992. Finally, in a January 1993 rating decision, the RO established the veteran's entitlement to a schedular rating of 70 percent for PTSD effective July 1, 1991, following the termination of the first temporary total rating described above. The Board notes that the veteran's representative has raised an additional issue of entitlement to an a total rating for compensation purposes based on individual unemployability. This issue is considered inextricably intertwined with the issue of entitlement to an increased rating for PTSD because both issues involve a question of the degree to which PTSD may preclude gainful employment. As such, the individual unemployability issue will be addressed in the Remand portion of this decision. In reviewing the representatives statement of issues dated May 11, 1993, it appears that he may be attempting to raise the issue of entitlement to a permanent and total disability rating for pension purposes. If this is in fact his intent he should inform the RO. Such an issue has not been currently developed or certified for appellate consideration. On page three of the above noted May 11, 1993 document the veterans attorney stated the following: "By letter dated November 23, 1992, Mr. [redacted] filed his VA Form 1-9 Substantive Appeal, requesting a personal hearing before the BVA." This is inaccurate. In November 1992 the veteran's attorney submitted a letter in the veteran's behalf in lieu of Form 1-9 advising, among other things, that any right to an RO hearing be waived. There was no request for a hearing before the Board. However, the May 11, 1993 document was submitted within 90 days of the certification of the appeal to the Board. As such, it is considered a timely request for a Board hearing. 38 C.F.R. § 20.1304 (1993). Such a hearing will be scheduled, if in order, pending completion of the Remand development. In the May 11, 1993 document the veteran's representative indicated that he was raising an issue of secondary service connection for major depression on the basis that it is proximately due to and the result of the veteran's service- connected PTSD. We consider this a moot question at the current time. On a VA psychiatric examination in December 1992, PTSD was diagnosed. The examiner stated that there are a number of depressive symptoms which he considered to be associated features of the major psychiatric disorder (PTSD) and not an entity separate in itself. The RO has not attempted to classify major depression as a nonservice-connected neurosis. It had in fact advised the veteran in October 1992 that his depression was part and parcel of his PTSD. As such, there is no additional service connection issue here. REMAND The claim for an earlier effective date of award of service connection and eligibility for compensation benefits for PTSD is predicated by the veterans representative on allegations of clear and unmistakable error. In February 1990 the Board denied service connection for a psychiatric disability including PTSD. The veteran's VA hospitalization commencing on May 13, 1991 for treatment of PTSD was considered the date of receipt of a new claim for service connection for PTSD, because within on year thereof, in July 1991, the veteran indicated in writing that he was again requesting service connection for PTSD. 38 C.F.R. § 3.157(b)(1) (1993). Service connection was then granted on the basis of new and material evidence. The current claim for an earlier effective date of award of service connection is therefore subject to the decision of Smith v. Brown, 35 F. 3d 1516 (Fed. Cir. 1994). The veteran was furnished a statement of the case in October 1992 concerning the issue of an increased rating for PTSD and the earlier effective date issue. After the statement of the case the RO received reports of VA hospitalization from September 11, 1992 to September 16, 1992 and from October 2, 1992 to October 9, 1992. A VA psychiatric examination was conducted in December 1992. In January 1993 the RO raised the rating for PTSD to 70 percent effective in July 1991 and denied service connection for alcohol dependence. There is no record of the veteran or his representative being furnished a supplemental statement of the case. When the essential remand development is completed here, the December 1992 VA examination will not be considered a contemporaneous examination for rating purposes. Caffery v. Brown 6 Vet.App. 377 (1994). As such, additional medical development will also need to be undertaken. The case is Remanded for the following action: 1. The RO should adjudicate the first issue on the title page of this decision pursuant to the case of Smith v. Brown, 35 F. 3d 1516 (Fed. Cir. 1994). 2. The RO should take all appropriate action to obtain any additional reports of VA inpatient or outpatient treatment since December 1992 for association with the claims folder. 3. Thereafter, the RO should afford the veteran a current VA psychiatric examination in order to determine the current nature and severity of his service- connected psychiatric disability. The examiner is requested to review the entire claims file and to offer an opinion as to the medical probability that the veteran's alcohol abuse, if currently present, is proximately due to or the result of the service-connected PTSD. The examiner is also requested to offer a complete diagnostic assessment consistent with the Diagnostic and Statistical Manual of Mental Disorders, Third Edition, Revised, of the American Psychiatric Association (DSM-III- R), including the Global Assessment of Functioning (GAF) scale on Axis V. The examiner is requested to comment on how the GAF scale, as a practical matter, translates into the veteran's social and industrial adaptability. A social and industrial survey should be performed to assist in determining the degree of impairment due to the service-connected psychiatric disability. 4. Thereafter, the veteran should be accorded a VA examination to determine the severity of his other service-connected disorders consisting of a lumbosacral strain with traumatic arthritis, tinea cruris and tinea pedis, a burn scar of the right forearm and headaches, classified as tension headaches. All clinical findings should be reported in detail. The claims folder should be made available to the examining physician, prior to examination, for his use in study of the case. Upon completion of the above, if the denial status remains in effect with respect to any of the issues noted on the title page of this decision, and/or entitlement to a total rating for compensation purposes based on individual unemployabilitiy is denied and a notice of disagreement is received with regard thereto, the veteran and his representative should be provided with a supplemental statement of the case. After he and his representative have been given an opportunity to respond, the case file should be returned to the Board for further appellate review, if necessary. No action is required of the veteran until notified. The purpose of this REMAND is to procure clarifying data and to ensure due process of law. BRUCE E. HYMAN Member, Board of Veterans' Appeals 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).