BVA9506475 DOCKET NO. 93-11 448 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an evaluation in excess of 10 percent for schizophrenia. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from December 1972 to March 1974. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an April 1991 rating decision of the San Juan, Puerto Rico Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to an evaluation in excess of 10 percent for the appellant's service-connected schizophrenia. REMAND The evidentiary record indicated the appellant was initially diagnosed with schizophrenia during inpatient (INP) care in December 1974. By a rating decision dated in November 1975, service connection for schizophrenia, undifferentiated type, was granted. Evaluations for such psychiatric disability were assigned as follows: 100 percent from December 1974; 30 percent from April 1975; 100 percent from January 1976; 30 percent from April 1976; 50 percent from November 1976; 100 percent from December 1976; 50 percent from March 1977; 100 percent from October 1979; 50 percent from February 1980; 30 percent from November 1984; and 10 percent from September 1986. The record contains proper notification of the aforementioned reductions in compensation pursuant to 38 C.F.R. § 3.105(e). The 100 percent ratings that were assigned were assigned for periods of hospitalization pursuant to 38 C.F.R. § 4.29. In September 1990, the appellant applied to reopen his claim for entitlement to an evaluation in excess of 10 percent for schizophrenia. Following an April 1991 VA psychiatric examination indicating no more than associated mild social and industrial impairment, such 10 percent evaluation was confirmed in an April 1991 rating decision. The appellant expressed disagreement with that evaluation in July 1991. Subsequently, the appellant submitted VA INP treatment reports indicating treatment for schizophrenia dated from April to May 1991. By a rating decision dated in November 1991, a 100 percent evaluation for schizophrenia was assigned, pursuant to 38 C.F.R. § 4.29, effective April 1991, with a 10 percent evaluation assigned effective June 1991. The record further reflects that while the appellant reported to a January 1992 physical examination with the infectious disease clinic, no objective psychiatric findings were noted on such report. By a rating decision of February 1992, the veteran was assigned nonservice-connected pension benefits and special monthly pension based on his HIV infection. In April 1992, VA INP reports dated from October to November 1991 were submitted, which indicated increased anxiety, memory loss, and auditory hallucinations reported to be moderate in degree. By a rating decision dated in May 1992, a 100 percent evaluation was assigned for such INP care period, with a 10 percent evaluation assigned effective December 1991. Subsequently, the appellant reported for a scheduled June 1992 VA psychiatric examination, but left the premises when requested to provide a urine sample. The appellant's representative then submitted copies of VA OPT treatment reports dated from October 1991 to April 1992, and requested that a VA psychiatric examination be rescheduled. Such VA OPT records indicated complaints of increased nervousness, anxiety, memory loss, and loss of concentration. In addition, the appellant reported that he had recently lost his job due to such symptomatology. Additional records indicate the appellant failed to report to a scheduled VA psychiatric examination in December 1992. However, in a December 1992 statement, the appellant reported that due to personal reasons, he was unable to report to such appointment, and therefore requested that it be rescheduled. While the record contains a January 1993 notice sent to the appellant indicating that such an examination would be rescheduled in the near future, as well as a computer reference that he failed to report to a February 1993 examination, the record does not contain any evidence that the appellant notified of the date and time of that February 1993 VA psychiatric examination. In fact, in his argument on appeal, the appellant's representative indicated that the appellant never received notice of the last scheduled VA examination. The VA has a duty to assist a veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1994). That duty includes obtaining medical examinations where indicated by the facts and circumstances of an individual case. See Schafrath v. Derwinski, 1 Vet.App. 599 (1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). Both the appellant and his representative have argued that the appellant's schizophrenic symptomatology has increased in severity since 1990. As the appellant apparently did not receive proper notification of the scheduled February 1993 VA psychiatric examination, the Board agrees with the appellant's representative that a recent VA psychiatric examination is necessary in order to adequately evaluate the current severity of the appellant's schizophrenia. See also Massey v. Brown, No. 93-135 (U.S. Vet, App. Dec. 6, 1994). Pursuant to the case of Hood v. Brown, 4 Vet.App. 301 (1993), and while this case was pending at the Board, the General Counsel of the VA issued a precedent opinion interpreting the terms "mild," "definite," and "considerable," as applied in 38 C.F.R. § 4.132 (1993). See O.G.C. Prec. 9-93, 59 Fed. Reg. 4753 (1994). In that opinion, the term "mild," the criterion for a 10 percent evaluation, was defined as "of moderate strength or intensity, and as applied to disease, not severe or dangerous." "Definite," the criterion for a 30 percent rating, was construed quantitatively to mean "distinct, unambiguous, and moderately large in degree," and "considerable," the criterion for a 50 percent evaluation, was defined as "rather large in extent or degree." Id. The VA, including the Board, is bound by such interpretations. 38 U.S.C.A. § 7104(c) (West 1991). As the case is otherwise in need of additional development, the RO will have a chance to readjudicate the evaluation of the psychiatric disorder mindful of this interpretation. Accordingly, the case is REMANDED for the following developments: 1. The RO should contact the appellant to determine the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided him with psychiatric treatment since January 1993. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the above mentioned claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1994). 2. The RO should accord the appellant a social and industrial survey to ascertain his employment history, particularly with regard to his most recent employment and the reason(s) for terminating employment. The RO should also contact his most recent employers to ascertain dates of employment, whether concessions were made for disability and reason(s) for termination of employment. 3. The RO should then schedule the appellant for a complete psychiatric examination in order to determine the current severity of schizophrenia currently manifested. All indicated tests and studies should be done. Specifically, the examiner is requested to assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (3d ed. rev., 1987), and explain what the assigned score represents. The examiner is further requested to adequately summarize the relevant history, including relevant treatment and previous diagnoses, as well as all current objective clinical findings and subjective complaints, and describe in detail the reasons for all medical conclusions. The examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. The claims folder should be made available to the examiner for review purposes prior to the examination, and the complete examination report, should be associated with the claims folder. In the event that the veteran fails to report for this examination, the claims folder should contain documentation showing that he was sent timely notice of the time and place to report, and that it was sent to the current address. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in the REMAND decision, detailing the requested developments, have, in fact, been substantially complied with. When these developments have been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this claim, pending completion of the requested developments. MICHAEL D. LYON 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).