Decision Date: 11/30/95 Archive Date: 12/01/95 DOCKET NO. 94-01 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an earlier effective date for an increased disability rating for service-connected perirectal abscesses with hidradenitis. 2. Entitlement to an increased disability rating for post- traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran served on active duty from December 1961 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 1992 and subsequent rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The March 1992 rating decision, in part, confirmed a 10 percent rating for the veteran's service-connected PTSD and confirmed a 60 percent rating for his service-connected perirectal abscesses with hidradenitis. The 10 percent rating for PTSD was subsequently increased to 30 percent by a rating decision in October 1992. The October 1992 rating decision also granted entitlement to a 100 percent schedular rating for the veteran's service-connected perirectal abscesses with hidradenitis, effective from June 21, 1991. The claim with respect to an increased rating for PTSD will be addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying his claim for an earlier effective date for an increased disability rating for his service-connected perirectal abscesses with hidradenitis. Specifically, he contends that the RO erred when, in its October 1992 rating decision, it granted him an increased disability rating from 60 percent to 100 percent effective as of June 21, 1991, the date of his claim. He maintains that his increased rating to 100 percent should have been made effective from the date of his May 1989 VA examination because his service-connected perirectal abscesses with hidradenitis were shown to be 100 percent disabling at that time. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that an effective date earlier than June 21, 1991, is not warranted in this case. FINDINGS OF FACT 1. The veteran filed a claim for an increased disability rating for his service-connected perirectal abscesses with hidradenitis on June 21, 1991. 2. In October 1992, the RO granted an increased disability rating from 60 percent to 100 percent effective June 21, 1991, the date of the veteran's claim of entitlement to an increased rating. 3. The earliest evidence showing an increase in disability warranting an increased disability evaluation of 100 percent for the veteran's service-connected perirectal abscesses with hidradenitis is a VA examination report dated March 1992. CONCLUSIONS OF LAW 1. The claim for an effective date earlier than June 21, 1991, is a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). 2. An effective date earlier than June 21, 1991, is not warranted for an increased disability evaluation for service-connected perirectal abscesses with hidradenitis. 38 U.S.C.A. § 5110(a), (b)(2) (West 1991); 38 C.F.R. § 3.400(o)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Perirectal abscesses with hidradenitis In November 1983, the veteran was granted entitlement to service connection for perirectal abscesses with recurrent inguinal lymph node infections and abscesses and assigned a 20 percent disability evaluation, effective from July 14, 1983. The 20 percent disability rating was increased to 40 percent by a rating decision in February 1985, effective from July 14, 1983. In May 1991, the Board increased the veteran's disability rating to 60 percent. A May 1991 rating decision implemented the 60 percent rating, effective from May 4, 1989. In a claim filed on June 21, 1991, the veteran claimed unemployability due to service connected disabilities. A March 1992 rating decision addressed the individual unemployability and increased rating issues. The decision was appealed and a statement of the case issues in July 1992. The veteran continues to prosecute the claim. In October 1992, the RO increased the veteran's disability rating to 100 percent, effective from June 21, 1991. The veteran expressed disagreement with the June 21, 1991 effective date set by the RO in the October 1992 rating decision granting an increased disability rating from 60 percent to 100 percent. Under these circumstances, the Board finds that the veteran has presented a well-grounded claim for an earlier effective date for an increased disability rating for his service-connected perirectal abscesses with hidradenitis within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf. Shipwash v. Brown, No. 94-21, slip op. at 8 (U.S. Vet. App. May 10, 1995) (holding that when a claimant is awarded service connection for a disability and subsequently appeals an RO's initial assignment of a rating for that disability the claim continues to be well-grounded). All relevant facts have been properly developed, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Section 3.400(o) of VA regulation governs effective dates for awards of increased ratings. It provides in pertinent part as follows regarding the calculation of the effective date for increased ratings: (o) Increases: (1) General. Except as provided in paragraph (o)(2) of this section . . . date of receipt of claim or date entitlement arose, whichever is later. . . . (2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of claim. Subsection (1) of 3.400(o) provides a general rule for determining the effective date of an increased rating, i.e., the date of claim or the date entitlement arose whichever is later. Subsection (2) provides an exception to the general rule for circumstances where it is factually ascertainable that an increase in disability occurred before the veteran submitted a claim for an increased rating. See also 38 U.S.C.A. § 5110(a), (b)(2) (West 1991). In such special cases, VA may grant an effective date as of the date that an increase in disability occurred, as shown by competent and credible evidence, but not earlier than one year before the date of claim. Although subsection (2) of the regulation contains the phrase, "otherwise, date of claim," the statute does not contain these words, indicating that if evidence is not obtained to show that an increase occurred before the date the claim is received, the adjudicator should apply the general rule governing a claim for increase under 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(o)(1) (1994): "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2) (West 1991). In this case, the RO made the veteran's increased disability rating to 100 percent effective June 21, 1991, because that is the date of his claim of entitlement to an increased rating. The RO granted this 100 percent rating under Diagnostic Code 7332 for complete loss of sphincter control. 38 C.F.R. Part 4, Code 7332 (1994). The veteran maintains that his increased rating to 100 percent should have been made effective from the date of his May 1989 VA examination because his service-connected perirectal abscesses with hidradenitis were shown to be 100 percent disabling at that time, i.e., that loss of sphincter control was demonstrated at the time of the May 1989 examination. On review of the May 1989 VA examination report, the Board finds no evidence of complete loss of sphincter control warranting a 100 percent disability evaluation under Diagnostic Code 7332. Moreover, the Board notes that the findings of the May 1989 VA examination report were the subject of a May 1991 Board decision which granted entitlement to an increased rating of only 60 percent for the veteran's service-connected perirectal abscesses with hidradenitis. Decisions of the Board are final unless the Chairman orders reconsideration of the case. 38 U.S.C.A. § 7103(a) (West 1991). Consequently, in the present case, the May 1991 Board decision is a bar to a rating exceeding 60 percent based on any of the evidence considered by the Board at the time of that decision. In this regard, it appears that the Board considered the veteran's medical records dated through September 5, 1989 in its May 1991 decision, including the May 1989 VA examination report. As noted above, under 38 C.F.R. § 3.400(o)(2) (1994), VA may grant an effective date as of the date that an increase in disability occurred, as shown by competent and credible evidence, but not earlier than one year before the date of claim. Similarly, this regulation bars an effective date of March 1989, as the veteran's claim for an increased rating was not received by the RO until June 1991, approximately two years later. The Board observes that the veteran had submitted additional medical evidence in support of his claim for an increased disability rating, including some outpatient reports dated between September 5, 1989 and June 21, 1991. In determining whether the RO fixed an effective date in accordance with the facts found, the Board must review this evidence to see whether any of these outpatient records show that an increase in the severity of the veteran's disability warranting a 100 percent rating occurred earlier than June 21, 1991. 38 U.S.C.A. § 5110(a) (West 1991). These records show treatment for service-connected perirectal abscesses with hidradenitis from September 1989 through July 1990. The veteran was continually prescribed medication for his pain. In July 1990, it was noted that he requested a clothing allowance because his inguinal cysts drained and ruined his clothing. An examiner reported in August 1990 that this condition was worsening at times. In December 1990, there was a large, painful lesion in the perineum. There were no draining lesions. In January 1991, the veteran complained of swelling in the testes. The examiner reported no change in the hidradenitis except for some increased mild pain. There were lesions in the perineum and lower scrotum. The veteran had a flare-up of his groin infection in February 1991. However, objective examination was negative. The examiner diagnosed chronic, recurrent hidradenitis and chronic pain. The veteran continued to complain of chronic pain and flare-ups through June 1991. This pain appeared to be associated both with nonservice-connected arthritis and his hidradenitis. Significantly, however, there were no complaints or objective findings of loss of sphincter control. In a letter received by the RO in October 1992, the veteran also maintained that a VA examination dated in January 1991 demonstrated that he had a brownish dark discharge on his underwear. However, the Board notes that while this examination report was dated January 1991, it was actually conducted in January 1992. Consequently, the Board finds that the evidence contained in such reports is insufficient to ascertain that an increase in severity of the veteran's service-connected perirectal abscesses with hidradenitis had occurred within the year prior to the June 21, 1991 claim. Rather, the first evidence of loss of sphincter control is contained in a March 1992 VA examination report and in July and August 1992 VA outpatient treatment records. These medical records contain complaints of frequent spells of diarrhea and difficulty with control of his bowels, although the March 1992 VA examiner saw no signs of any fecal soiling. Therefore, the Board concludes that the veteran is not entitled to the grant of a 100 percent evaluation for his service-connected perirectal abscesses with hidradenitis prior to June 21, 1991, the date of receipt of the claim. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(o)(1) (1994). Moreover, after the Board's May 1991 decision but before receipt of the veteran's June 1991 claim, the veteran did not submit any documents which could be construed as informal claims for an increased rating for his service- connected perirectal abscesses with hidradenitis. Therefore, the provisions of 38 C.F.R. §§ 3.155 and 3.157 (1994) regarding informal claims are not applicable in this case. ORDER Entitlement to an effective date earlier than June 21, 1991, for an increased disability rating for service-connected perirectal abscesses with hidradenitis is denied. REMAND II. PTSD The veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. A claim that a condition has become more severe is well-grounded where the condition was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. See Proscelle v. Derwinski, 2 Vet.App 629 (1992). However, for the reasons that follow, it appears that the statutory duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a) has not yet been fully met. The veteran contends, in essence, that his PTSD is far worse than the current disability evaluation would suggest. He has repeatedly asserted that the medications that he takes for the treatment of his PTSD interfere with his ability to function and to maintain any type of employment. Initially, the Board observes that the veteran has submitted a copy of a Social Security Administration (SSA) decision which granted him disability benefits. However, the records relied upon by SSA in reaching this decision are not of record. It has been resolved in various cases, essentially, that although the SSA decisions are not controlling for VA purposes, they are pertinent to the adjudication of a claim for VA benefits, and that the VA has a duty to assist the veteran in gathering SSA records. Collier v. Derwinski, 1 Vet.App. 413 (1991); Murincsak v. Derwinski, 2 Vet.App. 363 (1992); Masors v. Derwinski, 2 Vet.App. 181 (1992); Brown v. Derwinski, 2 Vet.App. 444 (1992); and Martin v. Brown, 4 Vet.App. 136 (1993) (the Board breached its duty to assist the appellant when it did not obtain the appellant's SSA records, but based its conclusion only on the SSA final decision). Therefore, the RO should make arrangements to obtain these records. Moreover, the Board notes that, at the time of his January 1992 VA psychiatric examination, the veteran reported that he had been dropped from the VA vocational rehabilitation program because such training was not feasible for him because of his PTSD. No records have been obtained from the veteran's VA vocational rehabilitation folder to confirm this statement or to gather information about the reasons such training was considered infeasible for the veteran. VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In psychiatric cases, social integration is one of the best indications of mental health. However, in evaluating impairment resulting from the ratable psychiatric disorders, social inadaptability is to be evaluated only as it affects industrial adaptability. This contemplates the effect that the abnormalities have upon the veteran's earning capacity. 38 C.F.R. § 4.129 (1994). Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. Emphasis is to be placed upon the examiner's description of actual symptomatology. Ratings are to be assigned which represent the impairment of social and industrial adaptability based on all the evidence of record. 38 C.F.R. § 4.130 (1994). In the instant case, the veteran was last provided with a VA psychiatric examination in January 1992. The psychiatrist indicated that there was no C-file available for comparison of previous status. The veteran was diagnosed as having PTSD of mild to moderate intensity. However, this finding is contradicted by the VA outpatient treatment notes of record, in which the veteran's psychologist describes his PTSD as considerable and severe. Examinations by specialists are recommended in those cases which present a complicated disability picture. See Hyder v. Derwinski, 1 Vet.App. 221 (1991). As the case must be remanded to obtain the complete Social Security and vocational rehabilitation records, and as no C-file was available for review at the time of the most recent VA examination, the Board concludes that an additional VA psychiatric examination would be beneficial in assessing the extent to which his PTSD symptoms, including the side effects of any medications taken to treat this disorder, affect his level of impairment of social and industrial adaptability. See Massey v. Brown, 7 Vet.App. 204 (1994). The examiner should assign a Global Assessment of Functioning (GAF) score. It is also possible that the veteran has received additional treatment for his PTSD since September 1992, the date of the most recent outpatient treatment records currently associated with the claims file. Therefore, the RO should make arrangements to obtain the veteran's complete medical records with respect to his PTSD as the duty to assist the veteran includes obtaining all medical evidence pertinent to his claim. See Littke v. Derwinski, 1 Vet.App. 90 (1990); Hyder v. Derwinski, 1 Vet.App. 221 (1991). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he provide the names and addresses of all health care providers that have treated him for his service-connected PTSD since September 1992. 2. After securing the necessary releases, the RO should obtain legible copies of all treatment reports and hospital treatment folders from all private health care providers listed by the veteran that are not already on file. The RO should also obtain legible copies of all treatment records from the VA facilities that are not already on file. The RO should point out that complete medical records, rather than summaries, are pertinent. If any records are not available, that fact and the reason(s) should be annotated in the claims folder. 3. The RO should obtain documents from the veteran's VA vocational rehabilitation file which are relevant to whether the veteran was dropped from vocational rehabilitation training by VA and, if so, why he was dropped. 4. The RO should make the necessary arrangements in order to obtain a copy of any SSA decision denying or granting disability benefits to the veteran. The RO should also obtain all the records from the SSA that were used in considering the veteran's claim for disability benefits, including any reports of subsequent examinations or treatment. If these records are duplicates of those already on file, that fact should be annotated in the claims folder. Any other records should be associated with the claims folder. 5. Once the above-requested records have been received and associated with the claims folder, the RO should schedule the veteran for a comprehensive VA psychiatric examination. The veteran should be instructed to bring his psychiatric medications with him to the examination. The examination is to be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including appropriate psychological studies with applicable subscales, are to be conducted. The claims file and a copy of this remand must be made available to and reviewed by the specialist prior to the requested examination. The examiner should review the pertinent history of the veteran's service-connected PTSD. The examiner should specifically provide the following information: The examiner should provide a detailed discussion of how the symptoms of the veteran's service-connected PTSD affect his social and industrial capacity. In so doing, the examiner should discuss the extent to which any medication that the veteran is taking for the treatment of his PTSD interferes with his ability to work or in his relationships with others. The examiner should discuss the side effects of each medication separately. The examiner must also assign a Global Assessment of Functioning (GAF) Score consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders and explain what the assigned score represents. And finally, the examiner should attempt to reconcile the conflicting characterizations of the severity of the veteran's PTSD, as reported by the veteran's psychologist in the VA outpatient treatment notes and by the psychiatrist on VA examination in January 1992. 6. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report(s). If the requested examination(s) does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report(s) must be returned for corrective action. 38 C.F.R. § 4.2 (1994) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). Once the foregoing has been accomplished, and if the benefits are not granted to the satisfaction of the veteran, both the veteran and his representative, if any, should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria, and should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran need to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. NANCY I. PHILLIPS 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a 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). - 2 -