Citation NR: 9614102	
Decision Date: 05/21/96		Archive Date: 05/31/96
DOCKET NO.  93-28 714	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUES

1.  Entitlement to a temporary total disability rating under 
38 C.F.R. § 4.29 based upon VA hospitalization from January 
21 to April 5, 1993.  

2.  Entitlement to an increased evaluation for a 
neuropsychiatric disorder, currently rated 30 percent 
disabling.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Anthony D. Dokurno, Associate Counsel



INTRODUCTION

The veteran had active military service from November 1976 to 
July 1990.  This matter comes to the Board of Veterans' 
Appeals (Board) on appeal from a June 1993 rating decision by 
the Department of Veterans Affairs (VA) Regional Office (RO).  

Because the issue of entitlement to an increased evaluation 
for a neuropsychiatric disorder requires additional 
development, it is addressed in the remand portion below.  


CONTENTIONS OF APPELLANT ON APPEAL

The veteran and his representative contend that he is 
entitled to a temporary total rating based on a period of VA 
hospitalization from January 21 to April 5, 1993 for his 
service-connected neuropsychiatric disorder.  They also 
contend that its severity warrants an evaluation higher than 
the current 30 percent.  


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1995), 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 Board's decision that the evidence supports entitlement 
to a temporary total disability rating based on a period of 
VA hospitalization from January 21 to April 5, 1993.  


FINDINGS OF FACT

1.  The veteran is service-connected, and currently rated 30 
percent disabled, for a neuropsychiatric disorder, major 
depression; he has no other service-connected disorder.  

2.  The period of VA hospitalization from January 21 to April 
5, 1993 was required for treatment of manifestations of his 
service-connected neuropsychiatric disorder.  


CONCLUSION OF LAW

The criteria for a temporary total disability rating based on 
a period of VA hospitalization from January 21 to April 5, 
1993, have been met.  38 U.S.C.A. § 5107; 38 C.F.R. § 4.29.  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The threshold inquiry in all cases is whether the claim is 
well grounded.  One who submits a claim to VA has the burden 
of submitting evidence sufficient to justify a belief by a 
fair and impartial individual that the claim is well 
grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1995).  If 
this burden is carried, VA is then obligated to assist in 
developing facts pertinent to it.  A well-grounded claim is 
one that is plausible, that is, capable of substantiation.  
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).  There must be 
more than a mere allegation.  The claim must be accompanied 
by evidence that justifies a belief by a fair and impartial 
individual that the claim is plausible.  Tirpak v. Derwinski, 
2 Vet.App. 609, 611 (1992).  

After a review of the veteran's personal hearing testimony 
and pertinent medical documentation, the Board finds that his 
claim is well grounded.  The statutory duty to assist in the 
development of facts has therefore arisen. 38 U.S.C.A. 
§ 5107(a); 38 C.F.R. §§ 3.103(a), 3.159 (1996).  With regard 
to the claim of entitlement to a temporary total disability 
rating, it appears that all necessary documentation has been 
acquired.  

A temporary total (100 percent) disability rating will be 
assigned without regard to other provisions of the rating 
schedule when it is established that a service-connected 
disability has required hospital treatment in a VA or an 
approved hospital for a period in excess of 21 days, or 
hospital observation at VA expense for a service-connected 
disability for a period in excess of 21 days.  38 C.F.R. 
§ 4.29.  The RO has assigned the veteran a 30 percent 
evaluation for a service-connected neuropsychiatric disorder, 
originally characterized as major depression.  The veteran 
and his representative contend that the veteran's 
hospitalization from January 21 to April 5, 1993 was required 
for treatment of this service-connected disorder, and that he 
is therefore entitled to a temporary total rating for that 
period.  

Treatment records indicate the veteran admitted himself to a 
VA facility on January 21, 1993 for treatment of alcohol and 
cocaine abuse, as well as for treatment of severe depression 
and thoughts of suicide.  After three days of detoxification, 
the veteran was transferred to another ward for evaluation of 
suicidal ideation and intent.  Neuropsychological testing on 
the Minnesota Multiphasic Personality Inventory revealed 
increased scales on psychopathology, paranoia, and 
schizophrenia, which to the examiner suggested a diagnosis of 
a character disorder as well as elevated depression.  The 
profile suggested a major depressive episode of at least 
moderate severity.  Although the examiner commented that the 
anxiety and depression symptoms could not clearly be 
differentiated from symptoms due to cocaine withdrawal, the 
veteran said that his depression was the "trigger" to cocaine 
and alcohol use.  The patient was prescribed Zoloft for 
treatment of depression, and discharged on April 5.  The 
diagnoses were severe alcohol and cocaine dependence, and a 
"depressive disorder" not otherwise specified.  The 
interrelationship between alcohol and cocaine withdrawal, a 
major depressive disorder, and the suicidal ideation was not 
specifically delineated.  

The veteran testified during a May 1995 personal hearing at 
the RO that he was held in the detoxification unit for three 
days or less, and that the ward to which he was transferred 
and the treatment he received were entirely related to his 
service-connected depression.  He stated he abused cocaine 
and alcohol to alleviate the symptoms of depression when they 
appeared.  He also testified that because of his depression 
he had attempted suicide in March 1995 by ingesting ethylene 
glycol, a fact confirmed by a VA outpatient treatment note 
dated in April 1995.  To control depression, the medication 
was changed from Zoloft to Prozac, with continuing use of 
Antabuse.  In addition to his testimony, the veteran 
submitted a September 1993 statement from an acting Chief of 
VA Medical Administrative Service, to the effect that his VA 
hospitalization during the relevant time period was for 
treatment of "depression/nervousness" and that he was 
discharged with a supply of the antidepressant Zoloft.  
Substance abuse was not mentioned.  

The Board's opinion is that it appears at least as likely as 
not that the veteran's hospitalization during the time in 
question was essentially for treatment of symptoms and 
manifestations of his service-connected neuropsychiatric 
disorder, depression.  Contemporary medical documentation 
substantiates the veteran's testimony regarding his quick 
transfer from detoxification to a separate psychiatric ward, 
where he was specifically prescribed medication for 
depression, which continues to the present day.  In addition, 
his subsequent medical history suggests that it is in fact 
the veteran's symptoms of depression that appear to trigger 
his polysubstance abuse, and not the reverse.  At the very 
least, on the evidence of record, it may not be said that he 
sought treatment during this period primarily for alcohol and 
cocaine abuse.  Therefore, resolving all doubt in favor of 
the veteran, entitlement to this benefit is established.  
38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. 
Derwinski, 1 Vet.App. 49 (1990).  


ORDER

Entitlement to a temporary total rating based on a period of 
VA hospitalization from January 21 through April 5, 1993 is 
granted, subject to the regulations governing the payment of 
monetary awards.  

REMAND

With regard to the veteran's claim for an increased 
evaluation for his service-connected neuropsychiatric 
disorder, the Board finds that the claim is well grounded, 
38 U.S.C.A. § 5107 (West 1991), in that it is capable of 
substantiation.  Murphy v. Derwinski, 1 Vet.App. 78 (1990).  
This finding is based on the veteran's assertion that the 
service connected disability has increased in severity.  
King v. Brown, 5 Vet.App. 19 (1993); Proscelle v. Derwinski, 
1 Vet.App. 629 (1992).  Once it has been determined that a 
claim is well grounded, VA has a statutory duty to assist the 
veteran in the development of evidence pertinent to the 
claim.  38 U.S.C.A. § 5107.  It appears that further 
development in this instance is necessary.  

In determining an appropriate evaluation for a disability, VA 
applies a schedule of percentage ratings reflecting the 
average impairment of earning capacity in civil occupations, 
resulting from specific injuries or combinations of them.  
38 U.S.C.A. § 1155; 38 C.F.R. 4.1.  A proper rating of a 
veteran's disability contemplates its entire history, 
38 C.F.R. § 4.1, and must be considered from the point of 
view of the veteran working or seeking work.  38 C.F.R. 
§ 4.2.  Although the entire history of the disorder must be 
considered, if an increase in the disability rating is at 
issue the present level of disability is of primary concern.  
Francisco v. Brown, 7 Vet.App. 55, 58 (1994). 

The veteran is currently evaluated 30 percent disabled under 
38 C.F.R. § 4.132, Diagnostic Code 9207 (major depression).  
Under this code, a considerable impairment of social and 
industrial adaptability warrants a 50 percent evaluation.  If 
the impairment is severe, a 70 percent evaluation is 
warranted.  When there are active psychotic manifestations of 
such extent, severity, depth, persistence or bizarreness as 
to produce total social and industrial inadaptability, a 100 
percent evaluation is assigned.  

The veteran was most recently examined by VA in May 1995.  He 
was oriented to time, place, and person, demonstrated an 
intact recent and remote memory, and admitted no 
hallucinations.  The examiner observed a mildly depressed 
appearance and mood.  He noted the veteran had been 
hospitalized and detoxified as recently as March 1995, and 
that he continued to receive Prozac to ameliorate symptoms of 
depression.  His vocational rehabilitation had reportedly 
been interrupted by the hospitalization, but he hoped to 
resume.  The examiner diagnosed recurrent depressive disorder 
(in partial remission), alcohol abuse (in remission), and 
cocaine abuse (in remission), and characterized the veteran's 
impairment as moderate.  He did not differentiate the degree 
of impairment due to substance abuse from impairment due to 
the service-connected disorder.  

With regard to the examiner's characterization of the 
veteran's impairment as "moderate," it should be noted that, 
as described above, 38 C.F.R. § 4.132 contains no such 
descriptive criterion.  Moreover, in Hood v. Brown, 
4 Vet.App. 301, 303-304 (1993), the Court stated that the 
term "definite" in 38 C.F.R. § 4.132 was "qualitative" in 
character, whereas the other terms were "quantitative" in 
character, and invited the Board to "construe" the term 
"definite" in a manner that would quantify the degree of 
impairment for purposes of meeting the statutory requirement 
that the Board articulate "reasons or bases" for its 
decision.  38 U.S.C.A. § 7104(d)(1).

The VA General Counsel has concluded that the term"definite" 
is to be construed as "distinct, unambiguous, and moderately 
large in degree."  It represents a degree of social and 
industrial inadaptability that is "more than moderate but 
less than rather large."  VA O.G.C. Prec. Op. No. 9-93 (Nov. 
9, 1993).  The Board is bound by this interpretation of the 
term "definite."  38 U.S.C.A. § 7104(c).  

If service connection is in effect for one diagnosis 
involving certain symptoms, but additional diagnoses 
encompassing such symptoms are of record, there must be 
evidence to assist adjudicators in distinguishing which 
symptoms are manifestations of the service-connected disorder 
and which are not.  See generally, Waddell v. Brown, 
5 Vet.App. 454, 456-57 (1993).  This requirement is inherent 
in VA's duty to assist in the development of pertinent facts.  
38 U.S.C.A. § 5107(a).  

In this case, examiners on more than one occasion, including 
the May 1995 VA examiner, have observed that the veteran 
manifests symptoms of both substance abuse and depression.  
None, however, has distinguished the degree to which the 
severity of the veteran's current impairment is due to the 
service-connected disorder from the severity due to substance 
abuse or any other neuropsychiatric disorder.  It is the 
Board's opinion that such an assessment must be made by 
skilled medical professionals, so that an equitable, informed 
adjudication may be accomplished.  See Hyder v. Derwinski, 1 
Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121 
(1991); Littke v. Derwinski, 1 Vet.App. 90 (1990).  

The Board has also noticed that in a November 1994 VA 
outpatient treatment note, an examiner wrote that the veteran 
was in receipt of Social Security benefits.  Where a well-
grounded claim has been submitted, the statutory duty to 
assist requires VA to obtain medical records the existence of 
which has been called to its attention.  See Murincsak v. 
Derwinski, 2 Vet.App. 363 (1992); EF v. Derwinski, 1 Vet.App. 
324, 326 (1991).  It is therefore appropriate to seek any and 
all medical documentation accumulated by the Social Security 
Administration (SSA) in connection with this award.  

Accordingly, the case is REMANDED for the following actions:

1.  The RO should contact the SSA and 
request a copy of any decision granting 
disability benefits and copies of the 
medical records upon which such 
entitlement was based. The attention of 
the SSA should be invited to 38 U.S.C.A. 
§ 5106.  

2.  The RO should obtain the names and 
addresses of all medical care providers 
who treated the veteran for any 
neuropsychiatric disorders since 
September 1993.  After securing the 
necessary releases of medical 
information, the RO should obtain copies 
of all medical documentation (not already 
of record) and add them to the claims 
folder.  

3.  The RO should obtain the veteran's 
Chapter 31 vocational rehabilitation 
folder and any counseling records 
available, and they should be associated 
with the claims folder.

4.  The RO should arrange for a VA 
psychiatric examination to determine with 
specificity and attention to the relevant 
rating criteria the identity and current 
severity of the veteran's service-
connected neuropsychiatric disorder.  The 
claims folder must be made available to 
the examiner for review in conjunction 
with the examination.  Symptomatology 
relating to any other coexisting 
psychiatric disorders should be 
distinguished, if possible, from service-
connected symptomatology.  If it is 
impossible to so distinguish the 
symptoms, the examiner should so state.  
The examiner should assign Global 
Assessment of Functioning (GAF) scores to 
each psychiatric disorder and explain 
what each score represents in compliance 
with Thurber v. Brown, 5 Vet.App. 119 
(1993).  The report of examination must 
include a complete rationale for all 
opinions.  

5.  The RO should then review the record, 
ensure that all the above actions have 
been completed, and readjudicate the 
claims of entitlement to an increased 
evaluation for a neuropsychiatric 
disorder.  The RO should specifically 
document consideration of 38 C.F.R. 
§ 3.321(b)(1) in this connection.  See 
Floyd v. Brown, No. 92-970 (U.S. Vet. 
App. Apr. 17, 1996) (the Board cannot 
make an extraschedular determination in 
the first instance).

If the remaining benefits sought on appeal are denied, the 
veteran and his representative should be furnished a 
supplemental statement of the case and given an opportunity 
to respond.  The case should then be returned to the Board 
for further consideration.  



		
	J. F. GOUGH
	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.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 & 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, 102 Stat. 4105, 4122 (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) 
(1996).
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