Citation Nr: 0005676 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 98-06 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 50 percent for major depression and post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from June 1968 to December 1972, from July 1973 to May 1975, and from April 1986 to November 1987. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision entered in October 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, implementing the Board's decision in September 1997 which granted service connection for major depression and post-traumatic stress disorder (PTSD) and assigning an initial rating of 50 percent therefor, effective from February 1992. In January 1998, the veteran initiated an appeal as to the RO's assignment of an initial rating of 50 percent. Received by the RO in November 1997 was the veteran's claim of entitlement to a total disability rating for compensation based on individual unemployability (TDIU). Such claim was adjudicated by the RO in a rating decision of June 1998, notice of which was furnished to the veteran in the same month, and at the time of a Board hearing held in February 1999, the veteran submitted a VA Form 21-4138, Statement in Support of Claim, regarding the RO's denial of his TDIU claim in June 1998. In light of the veteran's February 1999 submission, and inasmuch as the TDIU issue is not an issue over which the Board has jurisdiction to consider at this time, see 38 U.S.C.A. § 7104(a) (West 1991), such matter is referred to the RO for consideration, as appropriate. REMAND At the outset, it is noted that the veteran by means of a notice of disagreement filed in January 1998 challenged the disability rating initially assigned by the RO for his service-connected psychiatric disabilities. As such, there is presented an "original claim" as contemplated by Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate or "staged" ratings may be assigned for separate periods of time based on the facts found), as opposed to a claim for an "increased rating." It is apparent that the RO has not developed this matter in light of Fenderson, thus presenting the question of whether consideration of the merits of the claim presented pursuant to Fenderson would result in any prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As there exist several reasons for further evidentiary development of this matter, additional procedural development to permit the RO's initial consideration under Fenderson is deemed to be in order. The Board notes that a person who submits a claim for benefits under a law administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded. 38 U.S.C.A. § 5107(a). Generally, an allegation that a service-connected disability has become more severe is sufficient to establish 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, 631 (1992). The veteran's claim for an initial rating in excess of that assigned by the RO is, thus, "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). Once a claimant has presented a well-grounded claim, VA has a duty to assist the claimant in developing the facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a). It is noted that the veteran's representative at the Board hearing conducted in February 1999 specifically requested that further evidentiary development be undertaken. As correctly cited by the veteran's representative, it is unclear whether the VA examiner in April 1998 had the veteran's claims folder at his disposal for review, there being an indication in his written report that he did not have available the report compiled one year prior thereto that established the veteran's PTSD diagnosis. As well, the veteran has indicated on more than one occasion since January 1998 that he continues to receive ongoing treatment for his service-connected psychiatric disabilities at the VA Medical Center in Erie, Pennsylvania. While it is noted that the veteran submitted in February 1999 some additional VA treatment records compiled in 1998 and 1999, such do not appear to be all inclusive given his testimony as to the frequency of his counseling and psychiatric treatment. In any event, it is clear that the RO did not request updated records following the veteran's notation in January 1998 as to his receipt of continuing VA treatment of his service- connected psychiatric disorders. Further, the veteran offered testimony in February 1999 that he had been hospitalized at Brown Memorial Hospital in Conneaut, Ohio, in September 1998 for what was later believed to be a panic attack, and records as to that period of hospitalization are not now on file. Lastly, the veteran also notes that, since 1992, he has applied for and/or been accepted into programs of vocational rehabilitation administered by VA and the State of Ohio, and while some records as to the veteran's involvement with each such program are on file, it is advisable to obtain complete records as to the veteran's application for and/or participation in such programs. Accordingly, this matter is REMANDED to the RO for completion of the following actions: 1. The RO should obtain copies of all records of VA inpatient and outpatient treatment received by the veteran since 1992 for treatment of psychiatric disability, to include those compiled at the VA Medical Centers in Erie and Pittsburgh, Pennsylvania; Asheville, North Carolina; Cleveland, Ohio, inclusive of the Wade Park and Brecksville Divisions; and Fort Meade, South Dakota. Once obtained, such records must be made a part of the veteran's claims folder. 2. The RO should obtain any and all VA records pertaining to the veteran's prior applications and affiliations with VA- sponsored vocational rehabilitation training, inclusive of any training sub- folder, and, in addition, the RO is to obtain from the State of Ohio Rehabilitation Services Commission, Bureau of Vocational Rehabilitation (1700 West 19th Street, Ashtabula, Ohio 44004- 3098) all medical and administrative records utilized by that agency in terms of the veteran's eligibility and participation in its program(s) of vocational rehabilitation. Once obtained, such records must be associated with the veteran's claims folder. 3. The RO should obtain records pertaining to the veteran's hospitalization at Brown Memorial Hospital in Conneaut, Ohio, in September 1998, for inclusion in the claims folder. 4. Arrangements are to be made by the RO to afford the veteran a VA social and industrial survey at the veteran's residence. In connection therewith, efforts should be made to interview neighbors and any other persons in order to obtain additional data regarding the veteran's level of functioning and daily activities, as impacted by his major depression and PTSD. 5. Thereafter, the veteran is to be afforded a VA psychiatric examination at the VA Medical Center in Erie, Pennsylvania, (due to the proximity of the veteran's residence to such facility) for the purpose of determining the nature and severity of his service-connected major depression and PTSD. Such evaluation must encompass a comprehensive mental status evaluation and all appropriate testing following the examiner's detailed review of the veteran's claims folder, which must be provided to him/her in its entirety prior to any examination of the veteran. Once the examination is completed, the psychiatrist must specify all current psychiatric diagnoses and, to the extent possible, differentiate the symptomatology attributable to the service-connected major depression and PTSD from that of any other nonservice- connected psychiatric entity. As well, an assessment of the degree to which the veteran is socially and industrial impaired, due solely to the service- connected major depression and PTSD must be offered by the examiner and supporting reasons must be provided for such opinion. Consideration of the severity of the disorder in question, and only such disorder, in terms of the Global Assessment of Functioning Scale must also be undertaken, with designation of a numerical score and a full discussion of the significance of the score assigned. 6. The RO should thereafter readjudicate the veteran's claim for an initial rating in excess of 50 percent for major depression and PTSD, and if the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should then be provided. Thereafter, the case should be returned to BVA for final appellate consideration. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran and his representative are free to submit additional evidence and argument in connection with his current appeal. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified by the RO. ALAN S. PEEVY 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).