Citation Nr: 0006627 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 95-28 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Richard Sparkman, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from March 1966 to December 1969. 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 (RO) in St. Petersburg, Florida, which granted service connection for PTSD, with assignment of a 10 percent disability rating for this condition. In 1998, the Board remanded this case to provide the veteran a hearing in accordance with his request. In December 1999, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). The Board must consider all documents submitted prior to its decision and review all issues reasonably raised from a liberal reading of these documents. Suttmann v. Brown, 5 Vet. App. 127, 132 (1993) (citations omitted). Where such review reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue or, if appropriate, remand the issue to the RO for development and adjudication; however, the Board may not ignore an issue so raised. Id. On the other hand, the Board is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed by the appellant. See Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998) ("[B]efore [the RO or Board] can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). In this case, the evidence of record includes a statement submitted by the veteran in December 1994 evidencing his belief that he is entitled to "retroactive" compensation payments for his PTSD. That statement clearly raised a claim for an earlier effective date for the grant of service connection and assignment of a 10 percent disability rating for PTSD. This claim is not currently before the Board since it has not been adjudicated by the RO, and it is not otherwise intertwined with the claim on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994) (a claim is intertwined only if the RO would have to reexamine the merits of any denied claim which is pending on appeal before the Board under the pertinent law and regulations specifically applicable thereto). Therefore, this issue is referred to the RO for appropriate action. REMAND Additional evidentiary development is needed prior to further disposition of the veteran's claim for a higher rating for his service-connected PTSD. First, the veteran has submitted letters from Riccardo Rivas, Ph.D., who has treated him for his PTSD. According to the veteran's initial claim for compensation in 1993, Dr. Rivas has been treating him since 1991. The RO requested the veteran's treatment records from Dr. Rivas in 1993, but only received one report with a letter from Dr. Rivas. The veteran's treatment records are clearly relevant to his claim for a higher rating, and the RO should again request these records. If the request is unsuccessful, inform the veteran that the records could not be obtained, and offer him an opportunity to obtain and present such records if he wants them to be considered. 38 C.F.R. § 3.159(c) (1999); see also 38 U.S.C.A. § 5103(a) (West 1991). Second, it is necessary to provide the veteran an additional VA psychiatric examination because the Board does not have sufficient evidence upon which to decide this claim. It is unclear whether any of the veteran's social and occupational impairment is attributable to nonservice-connected disorders, as opposed to PTSD. In addition to his service-connected PTSD, the medical evidence shows that major depression also has been diagnosed. Since the nonservice-connected psychiatric condition may be contributing to the social and industrial impairment that the veteran is experiencing, it is essential that an attempt be made to separate the effects of his service-connected PTSD from his other psychiatric disorder(s) so that the appropriate disability rating may be assigned. Therefore, in order to assure that VA's statutory obligation to assist the appellant is fulfilled, an examination is required. See Waddell v. Brown, 5 Vet. App. 454, 456-57 (1993) (the Board's evaluation cannot be fully informed without an examination thoroughly describing the degree of disability attributable to the veteran's service-connected psychiatric disorder as opposed to diagnosed, nonservice-connected psychiatric disorder(s)); see also Shoemaker v. Derwinski, 3 Vet. App. 248, 254-55 (1992). At the hearing in 1999, the veteran presented some documents concerning his discharge from employment in 1995. While this case is in remand status, the RO should advise him that he should submit any additional documentation about his discharge from employment that would support his contention that this was the result of his PTSD. Accordingly, this case is REMANDED for the following: 1. Ask the veteran to submit the appropriate release form for his treatment records from Riccardo Rivas, Ph.D. The RO should request actual treatment records, as opposed to summaries, from this practicioner. If the request is unsuccessful, advise the veteran that the actual treatment records from Dr. Rivas are important to his claim. Advise the veteran that it is his responsibility to submit these records. See 38 C.F.R. § 3.159(c) (1999). Allow an appropriate period of time within which to respond. In addition, the RO should ask the veteran if has received any treatment for a psychiatric disorder from any other facility or practicioner since the time of his hearing in December 1999. Any facility or practicioner so identified should be contacted to obtain the records of such treatment, after submission by the veteran of the appropriate release form. 2. Advise the veteran that he should submit any additional documentation about his discharge from employment in 1995 that would support his contention that this was the result of his PTSD. 3. After obtaining as many of the above referenced records as possible and/or allowing the veteran an appropriate opportunity to submit such records, schedule him for a VA psychiatric examination to evaluate his PTSD. It is very important that the examiner be provided an opportunity to review the claims folder and a copy of this remand prior to the examination. The examiner should indicate in the report that the claims file was reviewed. The examiner must provide a complete rationale for all conclusions and opinions. All necessary tests and studies should be conducted in order to ascertain the severity of the veteran's service- connected PTSD. It is requested that a Global Assessment of Functioning (GAF) score be assigned consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV). It is requested that the VA examiner discuss the prior medical evidence regarding the veteran's service- connected PTSD and reconcile any contradictory evidence regarding the level of his occupational impairment and any prior medical findings. After review of the claims file, including the prior VA examination reports and Dr. Rivas' treatment record/letters, the examiner should render a medical opinion as to which of the veteran's symptomatology and/or social and occupational impairment is attributable to the service-connected PTSD as opposed to any nonservice- connected condition(s) (i.e., major depression and/or any other disorder identified upon examination). If it is impossible to distinguish the symptomatology and/or social and occupational impairment due to the nonservice-connected condition(s), the examiner should so indicate. 4. Following completion of the foregoing, review the claims folder and ensure that all of the above development actions have been conducted and completed in full. Ensure that the examination report includes fully detailed descriptions of all opinions requested. If it does not, it must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). 5. Thereafter, readjudicate the veteran's claim for a higher rating for PTSD, with application of all appropriate laws and regulations and consideration of the additional evidence developed upon remand. In readjudicating this claim, the RO should: (a) consider the claim under both the old and the revised rating criteria for evaluating mental disorders. See VAOPGCPREC 11-97; Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). (b) review the evidence of record at the time of the August 1994 rating decision that was considered in assigning the original disability rating for the veteran's PTSD, then consider all the evidence of record to determine whether the facts show that he was entitled to a higher disability rating for this condition at any period of time since his original claim. See Fenderson v. West, 12 Vet. App. 119 (1999). 6. If the benefit sought on appeal remains denied, provide the veteran and his attorney a supplemental statement of the case, and allow an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional information. No inference should be drawn regarding the final disposition of this case as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. STEVEN L. KELLER 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).