Citation Nr: 0005102 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 96-33 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating for schizophrenia, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from October 1971 to November 1973. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. The present appeal arises from a January 1996 rating decision, in which the RO denied the veteran an increased rating for schizophrenia, assessed as 50 percent disabling with an effective date from August 1983. The veteran filed an NOD in March 1996, and the RO issued an SOC in May 1996. The veteran filed a substantive appeal in June 1996. Supplemental statements of the case (SSOC) were issued in July and November 1996, and in September 1999. REMAND The veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted a claim which is plausible. This finding is based in part on the veteran's assertion that his schizophrenia is more severe than previously evaluated. See Jackson v. West, 12 Vet.App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629 (1992). A review of the veteran's claims file reflects that he was service connected for schizophrenia in January 1974, and was granted a total (100 percent) schedular rating, effective from November 1973. Subsequently, in May 1980, the RO reduced the veteran's disability rating from 100 percent to 70 percent, effective from August 1980. In a February 1982 decision, the Board upheld the RO's decision, finding that the veteran's schizophrenic disability was no more than 70 percent disabling. In May 1983, the RO reduced the veteran's disability rating from 70 percent to 50 percent, effective from August 1983. In reviewing the medical evidence, we note that numerous VA medical records document the veteran's treatment for schizophrenia, as well as for drug abuse. An April 1995 discharge summary, from the VA Medical Center (VAMC) in Wilkes-Barre, noted the veteran's report of paranoid ideation when using cocaine, as well as hearing voices intermittently. An earlier VAMC Wilkes-Barre discharge summary, dated from June 1994 to July 1994, noted that the veteran suffered from chronic schizophrenia and substance abuse, and that, during the course of his hospitalization, he was treated with Haldol. As a result, the veteran's psychotic symptomatology was reported to have subsided, possibly indicating that a significant component of his psychotic symptoms were drug- induced. A VAMC Coatesville discharge summary, dated from October 1995 to December 1995, noted the veteran's treatment for drug dependence, in particular his use of cocaine. A VAMC Wilkes-Barre discharge summary, dated in October 1995, reported that the veteran was admitted to the hospital complaining of paranoid ideations and auditory hallucinations, without suicidal/homicidal ideations. The summary noted that, when the veteran was given a small amount of Risperidone, he showed a rapid improvement and became pleasant, cooperative, and free from any active hallucinations. The examiner indicated that the veteran's auditory hallucinations were more or less complicated by his history of drug abuse. In addition, VAMC Martinsville treatment records, dated from December 1995 to April 1996, noted the veteran's treatment for drug dependence. A Vocational Rehabilitation Assessment, dated in January 1996, noted that the veteran had been employed at one time as a fork lift operator at a Sam's Club warehouse and as a machine operator in a slaughterhouse, but left both jobs due to stress, paranoid feelings, and auditory hallucinations. He was noted to have been using cocaine at those times. It was further reported that the veteran had an unstable work history, much of which was the result of both his substance addiction and psychiatric disorder. Thereafter, during a VA examination of the veteran in April 1997, the examiner reported that a full and thorough examination could not be conducted, given the veteran's intoxicated state, and that the veteran's claims file had not been available for review. On VA examination in January 1998, the examiner also reported not having the benefit of reviewing the veteran's claims file prior to the examination. Subsequent treatment records received by the RO from the VAMC in Lebanon, dated from March to May 1999, noted the veteran's continued drug dependence. The veteran was subsequently scheduled for an additional VA examination, but he failed to report. We note that the VA General Counsel has held that, pursuant to the statutory duty under 38 U.S.C. § 5107(a) to assist a claimant in the development of facts pertinent to his or her claim, and pursuant to decisions of the United States Court of Appeals for Veterans Claims interpreting that duty, a VA examiner must review a claimant's prior medical records when such a review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions. See VAOPGCPREC 20-95 (July 14, 1995). The Board is of the opinion that, given the severity and frequency of recurrence of the veteran's drug dependence and its apparent ability to complicate and mimic the symptomatology associated with his service-connected schizophrenia, a remand is necessary in this case before we can render a final decision. We find that the veteran should be scheduled for another VA psychiatric examination, to determine and assess more specifically the residuals of his schizophrenia. In order to be absolutely clear, the Board emphasizes that the objective of a further examination should be to obtain clarifying data as to the degree of ratable impairment from the veteran's service-connected schizophrenia, versus any non-service-connected substance abuse. This must include a determination of what psychiatric symptomatology is directly attributable to that service-connected disease, as compared to that attributable to the veteran's use of drugs, especially the use of cocaine. This in turn, will enable VA to accurately assess the current severity of the veteran's service-connected schizophrenia, as compared to any other disability or symptoms resulting from his use of drugs. We emphasize that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet.App. 517, 522 (1996). Thus, the veteran is reminded of his obligation to cooperate with the RO. The veteran must be prepared to meet his obligations by cooperating with VA's efforts to provide an adequate medical examination, and by submitting to the Secretary all medical evidence supporting his claim. Olson v. Principi, 3 Vet.App. 480 (1992). See also Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). Accordingly, for the reasons expressed above, further appellate consideration will be deferred and the case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he provide the names and addresses of all medical care providers who have treated him for schizophrenia since 1990. The RO should request the veteran to furnish signed authorizations for release to VA of medical records in connection with each non-VA source identified. The RO should attempt to obtain any such treatment records, not already on file, which may exist and incorporate them into the claims folder. The RO should also take the appropriate steps to secure copies of all the veteran's VA treatment records since May 1999, and associate them with the claims folder. 2. After completion of the above, the veteran should be afforded a thorough VA psychiatric examination in order to ascertain the current extent of his service-connected schizophrenia. The veteran's claims folder must be reviewed by the examiner prior to the evaluation of the veteran. Psychological testing should be conducted, and all clinical findings should be reported in detail. The report of examination should provide detailed descriptions of all current psychiatric symptomatology, to include the identification of any diagnoses other than schizophrenia. In particular, to the extent possible, the examiner should distinguish symptoms directly attributable to the veteran's schizophrenia, as compared to those symptoms attributable to his drug dependence, especially his use of cocaine. If the examiner is of the opinion that the veteran's use of drugs is a manifestation of the service-connected disability, the examiner should so state. The examiner should also be requested to assign a numeric score on the Global Assessment of Functioning (GAF) scale, and to describe what the score means for the veteran in terms of his psychological, social, and occupational functioning pertaining to his service-connected schizophrenic disorder. The examiner should then indicate the current degree of disability due to the veteran's schizophrenia, providing a complete rationale for any opinion expressed. 3. With regard to the instructions set forth above, the Board hereby informs the veteran of his obligation to cooperate by providing the requested information to the extent possible, and by reporting for the scheduled examination. The veteran is further advised that any failure to cooperate may result in adverse action pursuant 38 C.F.R. §§ 3.158, 3.655. 4. Following the foregoing, the RO should undertake any further warranted development, and should review the complete record of evidence and argument received regarding the appealed issue, under both the former and current rating criteria for mental disorders. If the determination remains unfavorable to the veteran, the RO should furnish him and his representative an SSOC concerning all evidence added to the record since the last supplemental statement of the case. Thereafter, the veteran and his representative should be given the opportunity to respond. The case should be returned to the Board for further appellate consideration, if otherwise in order, following appropriate appellate procedure. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of this REMAND is to further develop the record and ensure due process to the veteran. No action is required by the veteran until he receives further notice. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet.App. 369 (1999). 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. ANDREW J. MULLEN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a final 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 final decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (1999).