Citation Nr: 0502776 Decision Date: 02/04/05 Archive Date: 02/15/05 DOCKET NO. 97-13 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: National Veterans Legal Services Program, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had active service from November 1967 to November 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the veteran's claim of entitlement to service connection for post-traumatic stress disorder (PTSD). The appellant appealed, and in November 1998, the Board denied the claim. Specifically, the Board determined that a March 1993 RO decision, which denied a claim for service connection for PTSD, was final, and that therefore the instant claim was in fact a claim that new and material evidence had been submitted to reopen the claim for service connection for PTSD. See 38 U.S.C.A. § 5108. The Board determined that new and material evidence had been presented to reopen the claim, however, the Board denied the claim on the merits. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter, "CAVC"). In an Order, dated in June 1999, the CAVC dismissed the claim for lack of jurisdiction. The veteran appealed to the U.S. Court of Appeals for the Federal Circuit Federal Circuit ("Federal Circuit"). In 2002, the Federal Circuit reversed the CAVC's dismissal and remanded the claim. In October 2003, the VA's Office of General Counsel and appellant's representative filed a Joint Motion requesting that the CAVC vacate and remand the Board's November 1998 decision. That same month, the CAVC issued an Order vacating and remanding the November 1998 Board decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran argues that he has PTSD as a result of his service in the Republic of Vietnam. He has argued that he participated in combat, and he is shown to have been awarded the Combat Infantryman Badge (CIB). The veteran is therefore shown to have participated in combat, and his statements and testimony regarding the claimed stressors must therefore be accepted to the extent that they are consistent with the circumstances, conditions, and hardships of his service. See 38 U.S.C.A. § 1154(b) (West 2002). However, the claims file contains a significant amount of conflicting medical evidence as to whether the veteran has PTSD. See generally Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that under 38 U.S.C.A. § 1110, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). In this regard, it appears that the development of this claim has been stalled by the appellate process. Specifically, a review of the claims file shows that the veteran was most recently afforded a VA PTSD examination over six years ago, in December 1997. Since that time, VA hospital and outpatient treatment reports, dated between 1998 and 1999, have been associated with the claims file. These reports show treatment for psychiatric symptoms, and they contain inconsistent diagnoses that included PTSD, schizophrenia, and atypical depression. VA's fulfillment of the statutory duty to assist requires a thorough and contemporaneous examination which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991). Under the circumstances, the Board concludes that a remand is required for the scheduling of VA examinations. With regard to the examinations to be scheduled, the Board notes that it does not appear that the veteran has ever received psychological testing. On remand, VA psychiatric and psychological evaluations based on examination and review of the entire record are in order. See Littke v. Derwinski, 1 Vet. App. 90 (1990). Finally, the Board notes that the claims file does not contain any medical evidence dated after 1999. On remand, the RO should attempt to obtain all records of psychiatric treatment dated after 1999. Accordingly, the Board has no alternative but to defer further appellate consideration and this case is REMANDED to the RO via the AMC for the following actions: 1. The RO should ask the veteran to provide the names and addresses of all medical care providers who have provided treatment for psychiatric symptoms since 1999 (i.e., since the most recent medical evidence of record), which are not currently associated with the claims file. After securing any necessary releases, the RO should obtain these records. 2. The veteran should be afforded VA psychiatric and psychological evaluations, to assess the nature and etiology of all psychiatric disability present and the proper diagnoses thereof, specifically to include whether post- traumatic stress disorder is present. All necessary tests should be conducted. The psychological evaluation should include the MMPI-II, and any related or additional evaluative tests necessary to best evaluate the nature of any mental condition, and better assess the appropriateness of any diagnosis assigned. The claims folder with a copy of this remand must be made available to the examiners for review in association with their examinations. 3. The RO should then readjudicate the issue on appeal. If the determination remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The appellant should be given an opportunity to respond to the SSOC. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ C. P. RUSSELL 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) (2004).