Citation Nr: 0004055 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-06 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and friends ATTORNEY FOR THE BOARD G. R. Gleeson, Associate Counsel INTRODUCTION The veteran served on active military duty from March 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO) which continued evaluation of the veteran's service-connected PTSD as 30 percent disabling. Evaluation was subsequently raised in a February 1995 decision of the hearing examiner to 50 percent, effective from January 25, 1994 (date of receipt of current increased rating claim). The veteran has expressed his desire to continue his appeal, and believes he is entitled to 100 percent disability. The veteran testified at a personal hearing at the RO in January 1995 and at a Travel Board hearing before the undersigned Board Member in December 1999. REMAND The veteran contends that the evaluation assigned for his PTSD should be increased to reflect more accurately the severity of his symptomatology. As a preliminary matter, it is noted that the veteran's claim alleges an increase in severity of the service-connected disability, and is therefore a well-grounded claim for an increased evaluation. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran's claims file reveals that he has been receiving ongoing psychiatric treatment since as early as 1989 at a VA medical facility. The initial diagnosis was schizophrenia, and later diagnoses of depression and PTSD were added. The veteran testified at his Travel Board hearing that he continues to receive treatment for his PTSD at the Hines VA clinic 3 or 4 times per month. In addition there are statements from the veteran's treating social worker and physician confirming this ongoing treatment. The most recent treatment records in the claims file are dated in May 1994. Recent treatment records are necessary for a fair adjudication of the veteran's claim. The veteran has stated during psychiatric interviews as well as during his personal hearings that he has not been employed for a number of years. He elaborated that he was fired from certain positions, as he was unable to complete the work in a manner satisfactory to his supervisor. The Board notes that at a March 1992 psychiatric evaluation, the veteran stated that after graduating from high school, and prior to military service, he was fired from a job at a paper mill because he could not manage the tasks and did not have the necessary skills. This information raises the question as to whether the veteran's inability to maintain employment is exclusively due to his PTSD or may be also related to other factors. In addition, the Board notes that the veteran was, in the past, diagnosed with other psychiatric illnesses, which are not service-connected. It is the Board's judgment that a more thorough psychiatric examination is warranted for the purpose of determining the current severity of the veteran's PTSD and, to the extent that is possible, to distinguish service and non-service-connected psychiatric symptomatology. Caffrey v. Brown, 6 Vet. App. 377 (1994); Green v. Derwinski, 1 Vet. App. 121 (1991). Finally, the Board notes that during the pendency of the veteran's claim, the regulations pertaining to evaluation of mental disorders were amended, effective November 7, 1996. See 61 Fed. Reg. 52695-52702 (1996) (presently codified at 38 C.F.R. §§ 4.125- 4.130 (1999) (hereinafter referred to as "current" regulations). The Court has held that "where the law or regulation changes after a claim has been filed or reopened but before the ... judicial appeal process has been concluded, the version most favorable to appellant should and ... will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). In light of the foregoing, this case is remanded for the following further development: 1. The RO should obtain copies of all clinical treatment records for the veteran's PTSD and other psychiatric illnesses from the Hines VA clinic, as well as from any other VA medical facilities where the veteran may have received treatment. All such records should be associated with the claims file. 2. Following the completion of #1, the veteran should be scheduled for a VA examination for mental disorders, including PTSD. The examiner is asked to review the claims file prior to conducting the examination. He/she should set forth all findings in a typewritten report. Such findings should include whether the veteran manifests those symptoms set forth in the criteria for 70 percent and 100 percent disability in the rating code, 38 C.F.R. § 4.130, Diagnostic Code 9440. In addition, the examiner is asked to state the extent to which the veteran's purported inability to maintain employment is due to his PTSD symptomatology. Further, the examiner should address to what degree other non- service connected mental illnesses may contribute to the veteran's functional impairment, and whether the veteran's other mental illnesses are caused by his PTSD. 3. After completion of the above development, the RO should readjudicate the veteran's claim for an increased evaluation. The RO should evaluate the claim under both former and current sets of criteria, utilizing whichever code allows for the more favorable evaluation of the veteran's claim. If the decision remains adverse to the veteran, both he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time in which to respond thereto. The purpose of this remand opinion is to obtain additional evidence, and the Board herein intimates no opinion as to the merits of the claim. 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). 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).