Citation NR: 9700334	
Decision Date: 01/08/97		Archive Date: 02/03/97

DOCKET NO.  95-01 427	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, 
California


THE ISSUE

Entitlement to an increased rating for service-connected 
post-traumatic stress disorder, currently evaluated as 50 
percent disabling.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The veteran and a clinical psychologist




ATTORNEY FOR THE BOARD

Susanne Blume, Associate Counsel


REMAND

The veteran had recognized service from February 1981 to May 
1984 and from January 1985 to November 1992.

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from a 
June 1994 determination of the San Diego, California Regional 
Office (RO) of the Department of Veterans Affairs (VA), which 
granted service connection for PTSD with a 10 percent 
disability rating.  In a subsequent determination the veteran 
was granted a 50 percent disability rating.

This case is presently before the Board because when a 
claimant has filed a notice of disagreement with an RO 
decision assigning a particular disability rating, subsequent 
RO decisions awarding a higher rating but less than the 
maximum available benefit do not abrogate the pending appeal.  
AB v. Brown, 6 Vet.App. 35 (1993).

The veteran has received two VA PTSD examinations, in 
December 1993 and in February 1996.  Since the last VA 
examination  the VA Schedule of Ratings for Mental Disorders, 
has been amended and redesignated as 38 C.F.R. § 4.130, 
effective November 7, 1996.  61 Fed. Reg. 52695-52702 
(October 8, 1996 ).
Under the new regulation, the evaluation criteria for mental 
disorders have substantially changed, focusing on the 
individual symptoms as manifested throughout the record, 
rather than on medical opinions characterizing overall social 
and industrial impairment as mild, definite, considerable, 
severe, or total.  

The United States Court of Veterans Appeals has held that a 
liberalizing change in a regulation during the pendency of a 
claim must be applied if it is more favorable to the 
claimant, and if the Secretary has not enjoined its 
retroactive application.  Marcoux v. Brown, 9 Vet.App. 289 
(1996) (vacated on reconsideration and reissued as No. 95-52 
U.S. App. Dec. 19, 1996 ).  

Consequently, the Board finds that the veteran should be re-
examined in accordance with the newly implemented diagnostic 
criteria to determine the current severity of the veteran’s 
PTSD.

In addition, there is testimony from the veteran's doctor, as 
well has a letter from her therapist that the veteran has had 
a great deal of difficulty in maintaining employment.  The 
veteran should have a social and industrial survey to 
determine her employability.

Accordingly, in view of the foregoing, this matter is 
REMANDED to the RO for the following actions:

1.  The RO should request that the 
veteran provide the complete dates of 
treatment, if any, as well as the names 
and addresses of all health care 
providers where she has received 
treatment since December 1993.  After 
obtaining the necessary authorization 
from the veteran, the RO should contact 
the medical care providers identified and 
request copies of treatment records that 
are not already incorporated in the 
claims file.  

2.  The RO should schedule the veteran 
for a VA psychiatric examination, with 
someone who has not examined her 
previously, in order to determine the 
extent of the service-connected PTSD with 
consideration of the new criteria for 
evaluation of psychiatric disorders.  All 
necessary tests and studies, including 
appropriate psychological studies (if 
determined to be necessary by the 
psychiatrist) should be conducted in 
order to identify and describe the 
symptomatology attributable to PTSD.  The 
report of examination should contain a 
detailed account of all manifestations of 
the disability found to be present.  The 
examiner should express an opinion on the 
extent to which PTSD affects occupational 
and social functioning.  A multi-axial 
assessment should be conducted, and a 
thorough discussion of Axis IV 
(psychosocial and environmental problems) 
and Axis V (Global Assessment of 
Functioning (GAF) score), with an 
explanation of the numeric code assigned, 
is to be included.  The claims folder and 
a copy of this remand must be made 
available to the physician for review in 
conjunction with the examination.

3.  The veteran should be afforded a VA 
social and industrial survey to assess 
the veteran's employment history and day-
to-day functioning.  A written copy of 
the report should be inserted into the 
claims folder.

4.  After the development requested above 
has been completed to the extent 
possible, the RO should again review the 
record.  The RO should evaluate the 
veteran’s claim under a broad 
interpretation of the applicable 
regulations, consistent with 38 C.F.R. 
§§ 4.3 and 4.7 (1995), and with 
consideration of the mental disorders 
rating criteria in effect prior to and as 
of November 7, 1996.  

If the benefits sought on appeal remain denied the veteran 
and her representative should be furnished a supplemental 
statement of the case, containing all applicable laws and 
regulations not previously included.  They should be given a 
reasonable opportunity to respond.  They should also be 
informed of the need to file a notice of disagreement and/or 
substantive appeal where applicable in order to allow for 
Board consideration of any additional issues.  Thereafter, 
the case should be returned to the Board for further 
appellate consideration, if warranted.  No action is required 
of the veteran until she receives further notice.  By this 
remand, the Board intimates no opinion as to the ultimate 
outcome of this case.




		
	V. L. JORDAN
	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).
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