Citation Nr: 0000506 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 97 - 12 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES Entitlement to a rating in excess of 10 percent for post- traumatic stress disorder. Entitlement to a total disability rating based on unemployability due to service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from April 1971 to March 1974, including service in the Republic of Vietnam from October 1971 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1996 from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. That decision granted service connection for post-traumatic stress disorder (PTSD), evaluated as 10 percent disabling, and the veteran appealed, seeking an increased rating for that disability. During the pendency of this appeal, the veteran withdrew his appeal for a temporary total rating based on hospitalization under the provisions of 38 C.F.R. § 4.29 for the period from November 20, 1994, through March 1, 1995. That issue is no longer in appellate status, and will not be considered by the Board. REMAND The record in this case shows that the veteran was admitted to the Alcohol Dependence Treatment Program (ADTP) at the VAMC, St. Cloud, Minnesota, from August to September 1994, with a history of delirium tremens, blackouts, and alcohol and cocaine abuse. A diagnosis of PTSD was made by a psychologist. The Axis I diagnoses at hospital discharge were alcohol dependence, continuous; cocaine dependence, continuous; marijuana dependence, continuous; nicotine dependence, continuous, and PTSD. Global Assessment of Functioning (GAF) score was 45 currently and 60 for the past year. A hospital summary from the VAMC, Topeka, dated from November 1994 to May 1995 offered Axis I diagnoses of PTSD; schizoaffective disorder, depressed phase; cocaine dependence; alcohol dependence; nicotine dependence; cannabis abuse; and a GAF score of 40/40. A determination by the Social Security Administration, dated in March 1995, showed a primary diagnosis of affective disorder, and a secondary diagnosis of PTSD, and determined that the veteran was not disabled. Supporting documentation showed that the veteran had diagnoses of PTSD and alcohol abuse, but a solid record of substantially gainful activity through 1993 and, given his solid pre-morbid adjustment and current treatment for PTSD and alcohol abuse, should be able to return to substantially gainful activity. A report of VA psychiatric examination, conducted in May 1996, provided Axis I diagnoses of PTSD; schizoaffective disorder; alcohol and marijuana dependence; and crack abuse or dependence. The examiner stated that the veteran's symptoms were distributed as follows: his somewhat chronic depression was related to his schizoaffective disorder; his schizoaffective disorder was not part of his PTSD; and many of his current symptoms were part of his ongoing drug abuse, including violence, depression, concentration problems, future foreshortening, and some of his estrangement from other people. It was estimated that his GAF score based solely on his PTSD symptoms would be about 65. Based upon the medical record and the testimony of the veteran at his May 1996 personal hearing, a rating decision of July 1996 granted service connection for PTSD, and assigned a rating evaluation of 10 percent. As noted, the veteran appealed, seeking an increased rating for that disability. A hospital summary from the VAMC, St. Cloud, dated from August to September 1996, yielded Axis I diagnoses of multiple drug dependency, cocaine, crack, continuous; alcohol dependence, sporadic; nicotine dependence, continuous; PTSD, chronic , severe; and a GAF score of 55 current and 65 past year. Another hospital summary from the VAMC, St. Cloud, dated from September to October 1996, showed that the veteran had been transferred to the domiciliary for continued treatment. The Axis I diagnoses continued to be multiple drug dependency, cocaine, crack, continuous; alcohol dependence, sporadic; nicotine dependence, continuous; PTSD, chronic , severe; and a GAF score of 55 current and 65 past year. A report of VA psychiatric examination, conducted in November 1996, stated that it was difficult to be certain of the veteran's symptomatology because of his extensive drug abuse. The Axis I diagnoses were PTSD; schizoaffective disorder; alcohol dependence; and marijuana dependence and cocaine crack abuse "allegedly in remission since August." The examiner stated that the veteran's symptoms were essentially the same as on his previous psychiatric examination in May 1996 (above). A hospital summary from the VAMC, Knoxville, dated from October to December 1996, shows that the veteran failed to return from a pass, and was discharged irregularly. The Axis I diagnoses were PTSD; alcohol, crack, and cannabis dependence; as well as a schizotypal personality disorder. A psychiatric consultation in November 1996 noted that the veteran was superstitious, paranoid, believed in telepathy and sixth sense, and had perceptual experiences such as ghosts in his house. The Axis I diagnoses were PTSD, chronic, with depression; and alcohol and cocaine abuse; while the Axis II diagnosis was schizotypal personality disorder. A report of private psychiatric examination, conducted in June 1997, offered provisional diagnoses of PTSD; alcohol dependence, episodic; cocaine dependence, in remission; cannabis dependence, in remission; and antisocial personality disorder. A hospital summary from the VAMC, St. Cloud, dated in July 1997, shows that the veteran acknowledged on admission that he and his spouse were using alcohol, cocaine, and cannabis; that they spent $8,000 on drugs; that he experienced auditory and visual hallucinations; and that he was irritable, not sleeping well and had a diminished appetite. On addictive disorder consultation, it was felt that the primary problem was PTSD, not chemical dependency. The Axis I diagnoses were polysubstance abuse; PTSD; and a schizoaffective [disorder], and the GAF score was 45. A July 1997 report of private psychological evaluation diagnosed PTSD; episodic alcohol abuse; antisocial personality traits; and mild to moderate depression. The reporting psychologist stated that it was not possible to separate the veteran's alcoholism and cocaine abuse from his other symptoms. A disability determination by the Social Security Administration, dated in June 1995 found the veteran to be disabled due to PTSD and depression with psychotic features. An attached summary showed that the veteran's disabilities included an affective disorder, an anxiety related disorder, and substance addiction disorders. A subsequent determination by the Social Security Administration, dated in July 1997, found the veteran to be disabled due to PTSD and anti-social personality disorders. As may be seen from the foregoing, the veteran has been assigned multiple diagnoses for his psychiatric disabilities, including substance abuse and various personality disorders. Service connection is in effect for only PTSD. A report of VA psychiatric examination, conducted in May 1996, provided Axis I diagnoses of PTSD; schizoaffective disorder; alcohol and marijuana dependence; and crack abuse or dependence, and the examiner described the distribution of symptoms for each of the diagnosed disabilities. At that time he found that the veteran's symptoms were distributed as follows: his somewhat chronic depression was related to his schizoaffective disorder; his schizoaffective disorder was not part of his PTSD; and many of his current symptoms were part of his ongoing drug abuse, including violence, depression, concentration problems, future foreshortening, and some of his estrangement from other people. It was estimated that his GAF score based solely on his PTSD symptoms would be about 65. A similar report was obtained in November 1996. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The Board finds that the cited VA psychiatric examination of November 1996 was the last such official examination of the veteran contained in the record, and that a current examination is required to afford the veteran every equitable consideration. Accordingly, remand of the appeal for a rating in excess of 10 percent for PTSD is warranted. The Board further finds that the report of such examination should describe the distribution of symptoms for each of the veteran's diagnosed psychiatric disabilities, as was done in the previous VA psychiatric examinations of May and November 1996, and should specifically provide an estimate of his GAF score based solely on his PTSD symptoms. It is further contended that the Board should infer a claim for a total disability rating based on unemployability due to service-connected disability. The record shows that the veteran's VA Form 21-8940 was received at the RO on October 4, 1996; that a rating decision of December 1996 denied that claim, and that the veteran was notified of that adverse determination and of his right to appeal by VA letter of December 27, 1996. While the RO has not recognized a Notice of Disagreement with respect to that denial, the Board notes that in a VA Form 9 submitted in April 1997, the veteran stated, in pertinent part: "I can't get and hold a job. I've tried and can't". In another VA Form 9 submitted in July 1997, the veteran called attention to evidence from the VAMC, Topeka, which, he asserted, states that he is "unemployable totally." Governing law and regulations provide that a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the Notice of Disagreement must make that clear. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.201(1999). The Board finds that the above-cited statements of the veteran, appearing in the context of a Substantive Appeal (VA Form 9), may be reasonably construed as a Notice of Disagreement with the denial of the veteran's claim for a total disability rating based on unemployability due to service-connected disability. Accordingly, that matter is Remanded to the RO for further development and issuance of a Statement of the Case addressing that issue. The Board further notes that a rating decision of December 1997 denied the veteran's claim for a temporary total rating based on hospitalization under the provisions of 38 C.F.R. § 4.29 for the period from July 7 1997 through July 30, 1997. Although the veteran was given appropriate written notification of that adverse determination and of his right to appeal by RO letter of December 1997, he failed to submit a timely Notice of Disagreement and the appeal period expired with respect to that issue. That issue is not before the Board. In a recent decision, the Court held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. The Court further held that a remand by the Court or the Board imposes upon the Secretary of Veterans' Affairs a concomitant duty to ensure compliance with the terms of the remand, either personally or as [] "the head of the Department." 38 U.S.C.A. § 303 (West 1991). Further, the Court stated that where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board will ensure compliance with the mandate of the Court by whatever means are required. Accordingly, the RO must review all examination reports prior to returning the case to the Board in order to ensure full and specific compliance with all instructions contained in remands by this Board. All cases returned to the Board which do not comply with the instructions of the Board remand will be returned to the RO for further appropriate action as directed. The case is Remanded to the RO for the following actions: 1. The RO should ask the veteran to identify specific names, addresses, and approximate dates of treatment for all private and VA health care providers from whom he has received treatment for his service-connected PTSD since July 1997. With any necessary authorization from the veteran, the RO should attempt to obtain copies of all pertinent records identified by the veteran that have not been previously secured. 2. The veteran should then be scheduled for a special VA psychiatric evaluation by a board certified psychiatrist, if available, who is qualified to evaluate and diagnose PTSD. The claims folder and a complete copy of this Remand order must be made available to and must be reviewed by the examiner prior to the examination. The examining psychiatrist should determine the exact nature, extent, and correct diagnosis of any psychiatric disability found present. The psychiatric examination is to be conducted in accordance with the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the full findings reported in terms of multiaxial diagnoses, and a Global Assessment of Functioning (GAF) Score provided. Further, the examiner should describe the distribution of symptoms for each psychiatric disability found present in the veteran, as was done in the previous VA psychiatric examinations of May and November 1996, and should specifically provide a separate estimate of his GAF score based solely on his PTSD symptoms. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the requested development actions have been conducted and completed in full. If any development is incomplete, or if the psychiatric examiner does not affirmatively indicate that he has reviewed the veteran's claims folder, to include the notation of the veteran's psychiatric diagnoses cited in this Remand order, or if the psychiatric examiner fails to describe the distribution of symptoms for each psychiatric disability found present in the veteran, appropriate corrective action should be implemented prior to returning the case to the Board. 4. Thereafter, the RO should undertake any other indicated development and readjudicate the issue of entitlement to a rating in excess of 10 percent for PTSD; readjudicate the issue of entitlement to a total rating based on unemployability due to service connected disability, to include on an extraschedular basis, in light of the additional evidence obtained. 5. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Quarles v. Derwinski, 3 Vet. App. 129 (1992); Kutscherousky v. West, 12 Vet. App. 369 (1999). If the benefits sought on appeal are not granted to the veteran's satisfaction or if a timely Notice of Disagreement is received with respect to any other matter, the RO should issue a Supplemental Statement of the Case, including all applicable law and regulations, and the appellant and his representative should be provided an opportunity to respond. The appellant should be advised of the requirements to initiate and perfect an appeal on any issue addressed in the Supplemental Statement of the Case which is not currently on appeal. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of these claims. F. JUDGE FLOWERS Member, Board of Veterans' Appeals