Citation Nr: 0812803 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-17 701A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a disability rating in excess of 50 percent for bipolar disorder. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney At Law WITNESSES AT HEARING ON APPEAL Appellant and D.B. ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from July 1978 to September 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that an earlier December 2001 rating decision ruled the veteran was not competent to handle disbursement of his funds. The veteran did not appeal the rating decision. The appellant was subsequently appointed as the veteran's guardian. In September 2006, the appellant testified at a video conference hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claims folders. In an April 2007 decision, the Board denied the claim of entitlement to an increased disability rating for a bipolar disorder. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in a September 2007 order, granted a Joint Motion for Remand, remanding the case for compliance with the terms of the joint motion. During the September 2006 video conference hearing, the appellant appears to raise claims of entitlement to service connection for multiple disabilities, to include anoxic encephalopathy, as secondary to the veteran's service- connected bipolar disorder. There is no indication that the RO has had an opportunity to take any action on these claims. These issues are referred to the RO for initial development and adjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board notes that the veteran's most recent VA treatment records are dated in April 2005. Copies of any available VA records subsequent to that time need to be obtained and incorporated in the claims file. It is important to note that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). These treatment records should be associated with the claims file. 38 U.S.C. § 5103A (West 2002). VA is required to provide a medical examination when the record of the claim does not contain sufficient medical evidence for VA to adjudicate the claim. See 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). Although the veteran underwent a thorough VA psychiatric examination in February 2004, evidence from private treating facilities was subsequently submitted, including several psychological and psychiatric evaluations. These evaluations show the veteran had physical and psychiatric symptoms attributed to his 2001 anoxic encephalopathy. A July 2006 private physician examiner further opined that the veteran's anoxic encephalopathy episode was a direct result of his service-connected bipolar disorder. As noted above, the appellant has raised the issue of entitlement to service connection for residuals of the anoxic episode on a secondary basis. These relevant psychological and psychiatric evaluations were not available for review by any VA psychiatric examiner. Moreover, while the February 2004 VA examiner noted that the veteran's bipolar disorder was under good pharmacological control, the evaluation reports did not differentiate the symptoms associated with the veteran's nonservice-connected residuals of anoxic encephalopathy from those associated with his service-connected bipolar disorder and provided an overall Global Assessment of Functioning (GAF) of 28, indicative of serious impairment. The Board finds that the veteran should be provided another VA psychiatric examination. The psychiatrist should review the evidence of record, and specifically differentiate, to the extent possible, between the psychiatric symptoms attributable to the veteran's service-connected bipolar disorder and those associated with his nonservice-connected residuals of anoxic encephalopathy. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, the case is REMANDED for the following action: 1. VA should obtain any VA treatment records, dating from April 2005 to the present, and associate the records with the veteran's claims files. 2. Thereafter, the veteran should be afforded a VA psychiatric examination to determine the nature and extent of any current bipolar disorder found to be present. The claims files must be made available to and reviewed by the examiner prior to the examination. A notation to the effect that this record review took place should be included in the examination report. All indicated studies should be performed, to include a full psychological evaluation. Based on the medical findings and a review of the claims folders, the examiner is asked to render an opinion as to what effect the service-connected bipolar disorder has on the veteran's social and industrial adaptability. The examiner should specifically distinguish these symptoms and pathology from the veteran's nonservice-connected residuals of anoxic encephalopathy, if possible and assign a Global Assessment of Functioning (GAF) score pertaining to the veteran's bipolar disorder only. If the psychiatrist cannot differentiate between symptoms due to bipolar disorder and symptoms due to the veteran's nonservice-connected residuals of anoxic encephalopathy without resorting to speculation, he or she should so state. The psychiatrist is also asked to provide a rationale for any opinion expressed. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 3. Thereafter, the RO should readjudicate the issue on appeal. If the issue on appeal remains denied, a supplemental statement of the case should be provided to the appellant and his representative. After the appellant and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a 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 decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).