Citation NR: 9612154 Decision Date: 05/06/96 Archive Date: 05/16/96 DOCKET NO. 94-04 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for disabilities of the neck, right shoulder and right arm. 2. Entitlement to an increased rating for a dysthymic disorder, currently evaluated as 50 percent disabling. 3. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling. 4. Entitlement to a total disability rating on the basis of individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from September 1953 to August 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In October 1992, the veteran was granted a 10 percent rating for hearing loss, and was denied an increased rating for his service-connected dysthymia, rated as 50 percent disabling and a total rating based on individual unemployability. In a November 1994 rating decision, the RO denied service connection for disabilities of the right shoulder, right arm and neck. In February 1996, 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. § 7102(b) (West 1991 & Supp. 1995). REMAND The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995); 38 C.F.R. § 3.103(a) (1995). The Court has held that the duty to assist the veteran in obtaining and developing facts and evidence to support his claim includes obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). The examiner must relate the pertinent symptoms of the veteran’s psychiatric disorder to his social and industrial impairment. Massey v. Brown, 7 Vet.App. 204 (1994). Moreover, it would be helpful for the RO to obtain a current social and industrial survey to assess the effect of the veteran’s service-connected disabilities on his employability or unemployability, or his social and industrial capacity. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) During his personal hearing in February 1996, the veteran testified that he is currently receiving disability benefits from the Social Security Administration (SSA). A copy of the SSA decision granting or denying benefits to the veteran and all the records pertaining to his claim for SSA are not on file. The Court has held the duty to assist involves obtaining relevant medical reports where indicated by the facts and circumstances of the individual case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). Such duty extends to obtaining records from other Government Agencies such as the SSA. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992). See also Washington v. Derwinski, 1 Vet.App. 459, 465 (1991) (in context of claim for total rating based on individual unemployability due to service-connected disability, the Court held that the Board’s rejection of Social Security Administration determination of disability must be supported by independent medical evidence); Ferraro v. Derwinski, 1 Vet.App. 326, 331-32 (1991). During his personal appearance, the veteran also testified that he was involved in an automobile accident in 1971 where he sustained various injuries. He made reference to some treatment that received at Dr. Pila’s Hospital. It is unclear as to whether all the records of the treatment received by the veteran since service have been obtained. To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to the claim, this case is REMANDED to the RO for the following action: 1. The RO should request from the veteran a list containing the names, addresses, and dates of treatment of any physicians, hospitals, treatment centers (private, VA or military) or employers who provided him with relevant medical treatment not already reported to the RO or the Board. The RO should contact each physician, hospital, treatment center or employer specified by the veteran and request copies of all medical or treatment records or reports relevant to his claims for benefits. The Board is interested in any records of treatment at Dr. Pila’s Hospital. All pieces of correspondence, as well as any medical or treatment records obtained, which are not duplicates of those already on file, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the veteran 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 (1995). 2. The RO should make the necessary arrangements in order to obtain a copy of any SSA decision involving a claim for benefits filed by 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. 3. A VA social and industrial survey should be conducted for the purpose of assessing the veteran's industrial impairment. The individual conducting the survey should be provided with the veteran’s claims folder. The social and industrial survey report should set forth in a clear, comprehensive, and legible manner all pertinent findings. 4. Following the above, the veteran should be afforded a VA psychiatric examination to determine the nature and extent of his service-connected dysthymic disorder. All indicated tests are to be conducted. The claims file must be made available to and reviewed by the examiner prior to the examination. The examiner should review the pertinent history of the veteran’s service-connected psychiatric disorder. The examination report should include a detailed account of all manifestations of psychiatric pathology found to be present. The examiner must assign a numerical code under the Global Assessment of Functioning Scale (GAF) and should include a definition of the numerical code assigned. The psychiatrist should also express an opinion as to the extent of the social and industrial limitations imposed by the service-connected psychiatric pathology. Specifically, the examiner should provide an opinion of the extent to which the veteran’s psychiatric disorder (1) interferes with his ability to establish and maintain relationships and (2) reduces his initiative, flexibility, efficiency, and reliability levels in an employment context. The diagnosis should be in accordance with the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association. The examiner must provide a comprehensive report containing full rationale for all opinions expressed. 5. Following completion of the foregoing, the RO must 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. If the examination report does not include fully detailed descriptions of pathology or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1995) ("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). If the decision as to any of the issues on appeal remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The case should thereafter be returned to the Board for further review, if in order. The veteran need take no action until he is so informed. The purpose of this REMAND is to obtain additional information and to comply with the VA’s duty to assist the veteran with the development of his claims. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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) (1995). - 2 -