Bolton v. Brown

*187FARLEY, Judge, filed the opinion of the Court.

IVERS, Judge, and STEINBERG, Judge, filed separate concurring opinions.

FARLEY, Judge:

This is an appeal from a January 12, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which denied the appellant’s claim for an increased rating for post-traumatic stress disorder (PTSD). The appeal is timely, and this Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court will vacate the Board’s decision and remand the matter for readjudication consistent with this opinion.

I.

The appellant served on active duty from November 1968 to August 1971. Record (R.) at 5, 18. In November 1984, the appellant was incarcerated at the Morgan County Regional Correctional Facility at Wartburg, Tennessee, with a scheduled release date of March 3, 2005. R. at 123. In July 1985, he received a 10% rating for service-connected PTSD. R. at 17-20, 22.

In March 1991, the appellant filed a claim for an increased rating. R. at 77, 99. He wrote that he had been denied jobs because of his PTSD, that he had worked alone in his prison job in the laundry, that his medical condition had deteriorated because of his PTSD, and that he had suffered a “flashback” which had resulted in injuries. R. at 78-79. The appellant submitted a medical treatment record which recorded that on July 16, 1987, he had complained of “anxiety, flashbacks in [the] twilight sleep [and] nightmares.” R. at 56, 95. The prison psychologist had diagnosed “anxiety [secondary] to [PTSD].” Ibid. The treatment record also reported that on July 21, 1987, the appellant had received medical attention after reporting that he had been sleeping, “and [the] next thing he knew [he] had fallen [and] struck [his] head on [the] door.” Ibid. The medical practitioner had noted a superficial one inch laceration to the appellant’s forehead and a small raised area on his nose. Ibid. The appellant also provided an affidavit from Pat Lankford, a correctional officer at the county facility, which stated:

[A]lthough I have no formal medical training, I feel strongly that Oscar Bolton exhibits personality traits which would seriously handicap him in getting and holding a job in a free society. However, while Oscar has a job as a “landury (sic) man[,]” he has no co-workers, as the landury (sic) job is a one-man-operation.
Further, I have observed that Oscar is a “loner”, who has minimal interaction with his fellow inmates, and does not participate in any extracurricular activities.

R. at 81. The appellant also submitted “Job Register Placement” forms which recorded that in September and October 1990, the appellant had requested to work as a carpenter, upholsterer, sewing machine operator, “Comm.Cleaner,” and building trades apprentice, but that all of his requests had been denied “due to medical limitations.” R. at 90-94.

In March 1991, the VA regional office (RO) denied the appellant’s claim stating that “There is no current evidence showing his disability has increased in severity.” R. at 99. In September 1991, the appellant filed a Notice of Disagreement (R. at 103), and in October 1991, he perfected his appeal to the Board. R. at 112. In a decision dated April 28, 1992, the Board remanded the appellant’s claim to the RO, noting that the appellant had not received a psychiatric examination since June 1989. R. at 125-28. The Board ordered the RO to “take appropriate action to obtain copies of any clinical records that may exist reflecting psychiatric or psychological treatment” during his incarceration, and that the RO

should take appropriate action to have the veteran undergo a VA psychiatric examination for the purpose of ascertaining the current nature and extent of his psychiatric disablement. The examiner is specifically requested to comment on the degree of social and industrial impairment attributable to [PTSD], All studies deemed necessary should be performed. The claims folder should be made available to the *188examiner for review prior to the examination.

R. at 127.

The medical treatment records from the Tennessee Department of Corrections were received (R. at 136-55), including a March 1986 and a May 1990 “Health-Related Work Classification Summary” which reported that the appellant had been placed on limited duty with “periodic attention required.” R. at 137-38, 148. The examiner also noted three specific work limitations (i.e., “[sjhould not work around potentially dangerous machinery or equipment”), and annotated that the appellant’s physical disabilities were “[o]rtho-pedic [disease or [disorder ?? by [history] ... [and] [p]sychosis/[m]ental [ijllness.” Ibid. The records also included a mental health evaluation for the Board of Parole dated May 30,1990, by Dr. Nguyen, a fourth-year psychiatry resident at Meharry Medical College. R. at 150-53. Dr. Nguyen reported that he had conducted a clinical interview with the appellant and reviewed the appellant’s institutional files including a “Facts of the Offense report.” R. at 150. He concluded that “Mr. Bolton has a long history of conduct disorder from his childhood that involved his adulthood with Antisocial Personality Disorder. He has no evidence of [PTSD] from the Vietnam war.” R. at 152.

In September 1992, the RO wrote to the Chief of the VA Outpatient Clinic in Knoxville, Tennessee, requesting that he arrange for a VA examination of the appellant, as required by the BVA remand, by coordinating with the warden of the correctional facility, and enclosed the appellant’s claims folder for the examiner’s review. R. at 164. However, Dr. Howard, Chief Medical Officer at the VA Knoxville Outpatient Clinic, responded by writing that the “clinic is unable to find a fee base psychiatrist [who] will do an examination at the institution. [Also,] Mr. Luther Townley, Health Administrator at the institution ... does not have any physician [who] will do this type of specialized examination.” R. at 172.

In January 1993, the RO issued a confirmed rating decision denying the appellant an increased rating. R. at 176-77. The RO referenced Dr. Nguyen’s report, and then concluded:

A review of your VA files shows that your appeal ... was remanded to this office for additional medical evidence. However, since you are incarcerated at the Morgan County Regional Correction Facility, we have been unable to obtain the necessary VA examination, as requested by the [BVA], in order to reconsider your claim for an increased evaluation. Therefore, the available medical evidence does not show an increased evaluation is warranted and your [PTSD] remains 10% evaluated.

R. at 177. In February 1993, the appellant requested an examination “as order[ed] by the BVA.” R. at 184. In response, the RO inquired when the appellant expected to be released from prison, informed him that “since you were incarcerated, the examination could not be done,” and advised him that, “since no current medical evidence is available, no change is warranted in the current evaluation of your [PTSD].” R. at 188. The appellant responded that he did not know when he would be released from prison. R. at 190.

In January 1994 BVA decision, the Board decided that “the preponderance of the evidence [was] against [the appellant’s] appeal for an increased rating for [PTSD].” R. at 5. The Board, relying upon the May 1990 evaluation of Dr. Nguyen, wrote:

Significantly, the examiner found no evidence of [PTSD], and the veteran’s emotional problems were thought to be related to factors including drug and alcohol withdrawal. The pertinent diagnoses were multiple substance dependence, by history, and antisocial personality disorder. Inasmuch as subsequent efforts by the RO, most recently in November 1992, to arrange for the veteran’s psychiatric examination, pursuant to the provisions of 38 C.F.R. § 3.327 (1992) authorizing reexaminations by the VA to verify the current severity of a disability, have been unavailing, we must use our best judgment to determine what we feel is his current level of symptomatology. However, even -assuming, without conceding, that any such current symptomatology may be produc*189tive of some social inadaptability, we must emphasize that there is no clinical evidence that any interruption in any prein-careeration employment held by the veteran was occasioned by anything other than criminal conduct, as opposed to any factor related to [PTSD]; and that there is, similarly, no clinical evidence relating any recent disqualification from any work or job training opportunity offered in conjunction with the veteran’s current incarceration to his [PTSD],

R. at 8 (emphasis added).

The appellant filed a timely appeal to this Court, arguing that VA violated its duty to assist him by not providing a psychiatric examination as instructed by the Board upon remand to the RO. Appellant’s Brief (Br.) at 5-7. The appellant also argues that, pursuant to 38 U.S.C. § 5711, VA has subpoena power and should have issued a subpoena to require the correctional institution to release him with guards, as needed, so that VA could provide the psychiatric examination at the closest VA medical facility. Id. at 6. The appellant asserts that the Board erred when it failed to provide an adequate statement of reasons or bases for finding more persuasive the 1990 medical diagnosis which failed to diagnose PTSD than the two other examination reports of record which diagnosed PTSD. Id. at 7-8. Finally, the appellant argued that the BVA erred when it failed to consider all the evidence, to include his testimony that he could not work with others and the “Health-Related Work Classification Summary” documents he submitted to show the limitations placed upon his job assignments due to his medical condition. Id. at 8-10.

The Secretary argues that the BVA decision should be vacated because the appellant’s claim was not well grounded. Secretary’s Br. at 6-8. In'the alternative, the Secretary argues that the decision should be affirmed because it was predicated on a plausible basis in the record, the May 1990 psychiatric evaluation. Id. at 8-10.

II.

Section 5313 of title 38, U.S.Code, provides limitations on payments of compensation to incarcerated veterans, and states that a veteran incarcerated for a period in excess of sixty days for conviction of a felony

shall not be paid such compensation ... in an amount that exceeds—
(A) in the case of a veteran with a service-connected disability rated at 20 percent or more, the rate of compensation payable under section 1114(a) ... or
(B) in the case of a veteran with a service-connected disability not rated at 20 percent or more ... one-half of the rate of compensation payable under section 1114(a) of this title.

38 U.S.C. § 5313(a)(1); see 38 C.F.R. § 3.665(d)(1), (2) (1994). Under 38 U.S.C. § 1114(a), a veteran rated as 10% disabled receives monthly compensation of $87. The appellant is currently rated only 10% disabled, and thus receives only one-half the compensation due pursuant to 38 U.S.C. § 1114(a), currently $43.50 per month. If the appellant’s disability rating were to be increased to 30%, as he has requested, he would then receive the amount of compensation due under 38 U.S.C. § 1114(a), currently $87 per month. Therefore, this appeal presents a “case or controversy” ripe for judicial review. See Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990).

III.

Pursuant to 38 U.S.C. § 5107(a), a claimant “shall have 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. § 5107(a); see also Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). A claim for an increased evaluation is a new claim, not a reopened claim, and thus it is subject to the well-groundedness analysis. Stanton v. Brown, 5 Vet.App. 563, 565 (1993). A well-grounded claim is one which is plausible, “meritorious on its own or capable of substantiation.” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); see also Grottveit v. Brown, 5 Vet.App. 91, 92 (1993) (a well-grounded claim creates “a belief by a fair and impartial individual that the claim is plausible” (quoting Tirpak, 2 Vet.App. at 611)). Although the Board found, without analysis, the appellant’s claim to be well *190grounded, the determination of whether a claim is well grounded is a matter of law which this Court reviews de novo. See Yabut v. Brown, 6 Vet.App. 79, 82 (1993); Grottveit, 5 Vet.App. at 92; King v. Brown, 5 Vet.App. 19, 21 (1993).

The appellant has claimed entitlement to a rating increase for his service-connected PTSD. The appellant’s assertion that this disability had worsened is adequate to make the claim well grounded. See Proscelle v. Derwinski 2 Vet.App. 629, 632 (1992) (finding a claim for an increased rating well grounded when the appellant asserted that his service-connected disability had worsened since the prior rating); see also Lathan v. Brown, 7 Vet.App. 359, 365 (1995) (“The threshold of plausibility to make a claim well grounded is considerably lower than the threshold for new and material evidence to justify reopening a claim”).

IV.

A

The Board is required to provide “a written statement of [its] findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. ...” 38 U.S.C. § 7104(d)(1). In Gilbert v. Derwinski, 1 Vet.App. 49 (1990), the Court wrote:

The Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations. A bare conclu-sory statement, without both supporting analysis and explanation, is neither helpful to the veteran, nor “clear enough to permit effective judicial review,” nor in compliance with statutory requirements.

Id. at 57 (citation omitted).

Here, the Board concluded that the appellant’s claim for an increased rating should be denied, but the Board’s decision failed to “account for the evidence which it finds to be persuasive or unpersuasive,” for the record contained evidence supporting the appellant’s claim which the BVA did not address in its decision. Specifically, the record contained a prison treatment record which discussed the appellant’s complaints and treatment for anxiety flashbacks and sleep disturbances attributed to his PTSD (R. at 56), and 1991 prison treatment plans for' treating his PTSD in the future (R. at 139). Further, the record contained evidence of restricted job assignments attributed to “medical limitations.” R. at 90-94. Yet the BVA merely concluded that there was no clinical evidence “relating any recent disqualification from any work or job training opportunity offered in conjunction with the veteran’s current incarceration to his [PTSD].” R. at 8.

The BVA decision also provided an inadequate analysis of Mr. Lamont’s affidavit, a material piece of evidence which the appellant asserts proved industrial impairment. Although the BVA referenced this affidavit when it wrote that the appellant had submitted a statement “by a correctional officer, wherein the veteran is characterized as an individual who avoids interaction with fellow inmates and works without co-workers in a one-man laundry position” (R. at 8), the Board did not comment upon the evidentiary significance, if any, it had given this document. Such treatment of the evidence does not meet the standard set in Gilbert, for the Board did not “account for the evidence which it finds to be persuasive or unpersuasive,” Gilbert, 1 VetApp. at 57, or “analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reason for its rejection of any such evidence.” Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Gilbert, supra.

B.

Once a claimant has satisfied his initial burden of submitting a well-grounded claim, VA has an affirmative duty to “assist such a claimant in developing the facts pertinent to the claim.” 38 U.S.C. § 5107(a); see Proscelle, supra. “Where the record does not adequately reveal the current state of the claimant’s disability and the claim is well grounded, the fulfillment of the statutory *191duty to assist requires a thorough and contemporaneous medical examination.” Allday v. Brown, 7 Vet.App. 517, 526 (1995) (citing Suttmann v. Brown, 5 Vet.App. 127, 138 (1993); Green (Victor) v. Derwinski 1 Vet.App. 121, 124 (1991)). Further, “[w]here the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination” to fulfill its duty to assist. Olson v. Principi, 3 Vet.App. 480, 482 (1992) (citing Proscelle, supra).

Here, the Board properly identified a need for a current examination when it remanded the appellant’s claim in 1992 and ordered a psychiatric examination to determine “the current nature and extent of [the appellant’s] psychiatric disablement ...[,] specifically ... the degree of social and industrial impairment attributable to [PTSD].” R. at 127. The Board also ordered the RO to make the appellant’s claims folder available to the examiner, who was to conduct all studies necessary to make the requested determinations. However, a current examination was not obtained, and the Board chose to rely upon a 1990 examination conducted at the request of the Parole Board by a psychiatry resident who did not have the appellant’s claims folder to review. Such an examination neither fulfills VA’s duty to assist, nor constitutes an adequate predicate for both the rating determination and the BVA’s decision. See 38 C.F.R. §§ 4.2 (RO must return examination report that does not contain sufficient detail for rating purposes); 19.9 (BVA must remand ease to RO where “further evidence ... is essential for a proper appellate decision”) (1994). Dr. Nguyen’s report did not provide the information the BVA deemed necessary, and the Board should not have ceased in its quest for this necessary evidence to render its judgment on the appellant’s claim. See Allday, supra; 38 C.F.R. § 19.9.

In Wood v. Derwinski 1 Vet.App. 190 (1991), the Court stated:

We do, however, caution those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow veterans.

Id. at 193. Although the RO claimed an inability to get a fee-basis physician to conduct an examination in the correctional facility, the record contains neither information concerning the efforts expended by the RO in that regard nor any explanation as to why a psychiatrist employed by the VA was not directed to perform the examination. Under the unique circumstances presented by this case, where the Secretary has determined that the veteran is not available to participate in a VA examination under regular conditions, and in keeping with the “caution” of Wood, supra, a remand is required to provide the Secretary with another opportunity to fulfill his statutory duty to assist this appellant in developing the facts of his claim. See 38 U.S.C. § 5107(a); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1994).

C.

Finally, we do not agree with the argument by the appellant that the Secretary has the authority under 38 U.S.C. § 5711 to require the correctional institution to release the appellant with guards, as needed, so that VA could provide the psychiatric examination at the closest VA medical facility. Section 5711(a) of title 38, U.S.Code, authorizes the Secretary or his properly delegated representative to “(1) issue subpoenas for and compel the attendance of witnesses within a radius of 100 miles from the place of hearing ... [and] (4) aid claimants in the preparation and presentation of claims.” In 38 C.F.R. § 20.711 (1994), the Secretary has defined the scope of this subpoena power to compel the production of witnesses or evidence for a VA hearing. We do not read either the statute or the regulation as authorizing the Secretary to subpoena the warden at a state correctional facility and direct the release of the appellant from that facility for attendance at a VA hospital for a psychiatric examination. Cf. U.S. v. Larkin, 978 F.2d 964, 967-68 (7th Cir.1992) (discussing the federal government’s use of a Writ of Habeas Corpus to obtain custody of a prisoner in a state facility pursuant to 28 U.S.C. § 2241).

*192V.

Accordingly, the Board’s January 12,1994, decision is VACATED and the matter REMANDED for expeditious proceedings consistent with this opinion. See Veterans’ Benefits Improvements Act of 1994, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note). On remand, after completion of the VA psychiatric examination, the Board may reevaluate the evidence and provide adequate reasons or bases for its conclusion, to include an explanation as to the applicability of the benefit-of-the-doubt rule as to each material issue in the case. 38 U.S.C. § 5107(b); see Crowe v. Brown, 7 Vet.App. 238, 249 (1994) (stating that the reasons or bases requirement of 38 U.S.C. § 7104(d)(1) applies to the Board’s application of the benefit-of-the-doubt rule); Williams (Willie) v. Brown, 4 Vet.App. 270, 273-74 (1993) (“where there is significant evidence in support of an appellant’s claim ... the Board must provide a satisfactory explanation as to why the evidence was not in equipoise”).