BVA9505628 DOCKET NO. 92-09 264 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating for neurological deficits due to brain trauma separate from the current 70 percent rating under Diagnostic Codes 8045, 9400, and 9411 for his service- connected anxiety reaction. 2. Entitlement to a total rating based on individual unemployability. REPRESENTATION Appellant represented by: Eileen S. Goodin, Esquire ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from October 1967 to October 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from several rating decisions from the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In the September 1991 rating decision the RO denied the veteran's claim of entitlement to an increased rating for an anxiety reaction, to include residuals of a concussion, manifested by headaches, somatization, post traumatic stress disorder, and seizure episodes (anxiety disorder) and denied the claim of entitlement to a total rating based on individual unemployability. In March 1994, the Board confirmed the RO denials of an increased rating for a nervous disorder, including its determination that the veteran was not entitled to a separate rating for any organic brain trauma that he may have exhibited and a total rating for compensation on the basis of individual unemployability. The veteran appealed both issues to the United States Court of Veterans Appeals (Court). In a December 1994 order, the Court vacated the Board's March 1994 decision and remanded the case for further development in compliance with a joint motion for remand. [citation redacted]. Specifically, the Court ordered that entitlement to a disability rating for neurological deficits due to brain trauma separate from the current 70 percent rating under Diagnostic Codes 8045, 9400, and 9411 for the service-connected anxiety reaction and entitlement to a total rating based on individual unemployability be remanded and entitlement to an increased rating for an anxiety reaction in excess of 70 percent be dismissed. REMAND Evidence of record includes private and VA psychiatric examinations which were conducted in April and May, 1991. As noted by the Court, in both reports, the physicians did not rule out diagnoses of organic brain syndrome and/or a seizure disorder, as conditions secondary to head trauma. Instead, they suggested that additional neurological testing be performed. The psychiatric examinations did not include the necessary data to fairly adjudicate the issues on appeal. The Board is of the opinion that updated VA neurologic and psychiatric examinations will facilitate reaching equitable decisions in this case. The Board also notes that a VA social and industrial survey to determine the impact of the veteran's service-connected disabilities on his daily life has not been conducted. The Board is of the opinion that an updated social and industrial survey will also facilitate reaching an equitable decision in this case. Although the issue of entitlement to an increased rating for anxiety reaction in excess of 70 percent has been dismissed, any consideration of a separate rating for neurologic residuals due to brain trauma must take into account the provisions of 38 C.F.R. § 4.14 with respect to the avoidance of pyramiding. In other words, through examination the Board must find out those manifestations of the service-connected disability which are neurologic in nature and those which are psychiatric. In addition, the Board must know if there are any manifestations which could be mixed neurologic and psychiatric in nature and cannot be separated. Once this is known, it can be determined what rating, if any, can be assigned on a neurologic basis. In so doing, VA cannot include in a separate rating any manifestations which are already contemplated in another rating. To do so would be pyramiding. The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining evidence from any source, and obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes obtaining available evidence to support the claim. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In view of the foregoing, the Board finds further development is in order to assist the veteran in the development of his claims. Therefore, the case is REMANDED to the RO for the following action: 1. The veteran should be requested to furnish the names of all health care providers who have treated him for his service-connected anxiety disorder since February 1990. After having obtained the appropriate releases, the RO should obtain copies of all private medical records, not already on file, pertaining to the veteran. The RO should also obtain copies of all VA outpatient and hospital records, not already on file, concerning treatment of this veteran. If any records are not available, that fact and the reason should be annotated in the claims folder. 2. A VA social and industrial survey should be conducted. It should be ascertained if the veteran is working. Family members, former coworkers, members of the community and the veteran should be interviewed. The purpose of the survey is to obtain information upon which to assess the impact of the service-connected disorders on the veteran's ability to secure or follow a substantially gainful occupation. 3. After the foregoing is completed and associated with the claims file, the veteran should be accorded special psychiatric and neurologic examinations to determine the nature and extent of the service-connected residuals of a concussion. The complete claims folder and a copy of this remand should be made available and reviewed by the examiners prior to the examinations. All necessary special studies and/or tests including psychomotor testing are to be accomplished. The results of all testing should be reviewed by the examiners prior to completion of the reports. The reports of examination should include a detailed account of all manifestations of psychiatric and/or neurologic pathology found to be present. Each examiner must delineate those residuals which are of a neurologic or psychiatric nature. If there are any residuals which are mixed or it is not possible to determine if they are of neurologic or psychiatric origin they should be so identified. The psychiatrist should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the psychiatrist include a definition of the numerical code assigned. Thurber v. Brown, 5 Vet.App. 119 (1993). The psychiatrist's diagnosis should be in accordance with DSM- III-R. Each examiner must also assess the impact of the residuals of the concussion on the veteran's ability to obtain and maintain gainful employment. If the examiners find it desirable, they should confer with one another prior to completion of their reports. The reports of examinations should include a complete rationale for all conclusions reached. 4. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. The social and industrial survey must be reviewed for adequacy. Specific attention is directed to the examination report. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 5. After the foregoing, the RO must first determine if there are any neurologic manifestations identified which can be separately rated. If so, an evaluation should be assigned to them. In so doing, the RO must follow the provisions of 38 C.F.R. § 4.14 (1994). Thereafter, the RO must adjudicate the issue of entitlement to a total disability rating based on individual unemployability with consideration given to 38 C.F.R. §§ 3.321(b)(1), 4.16(a) (marginal employment), 4.16(b) (1994). Following completion of these actions and, if the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. JAN DONSBACH 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) (1994).