Citation NR: 9625285 Decision Date: 09/13/96 Archive Date: 09/15/96 DOCKET NO. 94-44 862 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for arthritis of multiple joints (including the left shoulder, knees, feet, and thoracic spine). 4. Entitlement to service connection for hypertensive disease. 5. Entitlement to service connection for residuals of malnutrition. 6. Entitlement to service connection for residuals of a left shoulder fracture. 7. Entitlement to service connection for residuals of a left forearm fracture. 8. Entitlement to service connection for residuals of a left jaw fracture. 9. Entitlement to service connection for residuals of frozen feet. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from June 1940 to October 1964. He was a prisoner of war of the German Government in excess of 30 days during the mid-1940’s. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a May 1993 rating decision of the Montgomery, Alabama, Regional Office (RO), which denied service connection for a psychiatric disability, hearing loss, multiple joint arthritis (involving the left shoulder, knees, feet, and thoracic spine), hypertensive disease, residuals of malnutrition, residuals of a left shoulder fracture, residuals of a left forearm fracture, residuals of a left jaw fracture, residuals of frozen feet, and a stomach disability. A hearing was held at the RO in December 1993. Later that month, the hearing officer rendered a decision determining that service connection for peptic ulcer disease with gastritis and duodenitis was warranted; and service connection for peptic ulcer disease with gastritis and duodenitis was granted by an implementing rating decision. Therefore, this issue of service connection for peptic ulcer disease with gastritis and duodenitis is moot. The remaining issues of service connection for a psychiatric disability, hearing loss, arthritis of multiple joints (including the left shoulder, knees, feet, and thoracic spine), hypertensive disease, residuals of malnutrition, residuals of a left shoulder fracture, residuals of a left forearm fracture, residuals of a left jaw fracture, and residuals of frozen feet will be dealt with in the REMAND section of this decision. REMAND Appellant contends that the claimed disabilities are related to service, including from prisoner-of-war internment in the mid-1940’s and an alleged helicopter crash in Korea during the early 1950’s. Appellant’s service records reveal that during his nearly two and a half decades of military service, his military occupational specialties included rifleman, parachutist, [parachute] jump instructor, and aviation unit commander; and that awards included an Air Medal. The Board wishes to express its appreciation of appellant’s lengthy and distinguished military service. Considering the overall evidentiary record, it appears that additional development is in order for the following reasons. The evidentiary record reflects that appellant’s service medical records are incomplete. In response to the RO’s request for any service medical records in his possession, appellant, in a May 1993 written statement, stated that he did not have any such records. For the purpose of obtaining the service medical records, the RO filed numerous requests for information with the National Personnel Records Center (NPRC)/United States Army Reserve Personnel Center (ARPC). Finally, in October 1994, ARPC provided the July 1964 report of service retirement examination. However, NPRC and ARPC have not indicated (1) whether a search for all of his service medical records was accomplished; (2) the reason(s) for the unavailability of all of his service medical records; and (3) whether his service medical records were sought from alternative sources. Additional service medical records are potentially material, particularly in indicating the approximate date of onset of the claimed disabilities and whether trauma was sustained to the claimed joints from an in-service helicopter crash or other occurrence. At the December 1993 hearing, appellant submitted numerous post-service military clinical records dated from October 1964 to November 1993. Apparently after the hearing, the originals of these records were returned to the military’s custody, after the VA photocopied them. Unfortunately, some of these photocopied clinical records are essentially illegible (e.g., an October 1964 physical examination report). Presumably, these illegible clinical records might be material in deciding the issues on appeal; and, therefore, the originals or legible copies of such records should be obtained and associated with the claims folder, if they can be obtained. With respect to another matter, in his February 1992 application for VA disability benefits, appellant referred to his having undergone knee surgery in 1985 at “Houston” Sports Center. In response to the RO’s subsequent request for information, Hughston Sports Medicine Hospital, in an August 1992 letter, stated that it did not have any records of appellant’s treatment, but that he may have received treatment from Hughston Clinic, and listed a different address. However, it is unclear from the record whether the RO has attempted to obtain any clinical records from the Hughston Clinic. Records from that clinic might presumably be material in deciding the issue of service connection for arthritis. It should be pointed out that, with respect to the issues of service connection for a psychiatric disability, arthritis, residuals of malnutrition, and residuals of frozen feet, the provisions of 38 U.S.C.A. §§ 1112, 1113 and 38 C.F.R. §§ 3.307, 3.309 may be applicable. In pertinent part, these provisions state: Where a veteran is a former prisoner of war and was detained or interned for not less than 30 days and post-traumatic osteoarthritis, malnutrition, any of the anxiety states, dysthymic disorder (or depressive neurosis), or organic residuals of frostbite (if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite) becomes manifest to a degree of 10 percent any time after such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence which may be considered in rebuttal of service incurrence of a disease listed in § 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression “affirmative evidence to the contrary” will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d). With regards to the issue of service connection for a psychiatric disability, appellant, in his February 1992 application for VA disability benefits, stated that he had “depression, stress, anxiety, insomnia, nightmares - possible PTSD.” The September 1992 VA psychiatric examination report noted that appellant denied any mental disorder; that he denied “major” anxiety or depression; and the examiner stated that there was “no indication of psychiatric disorder.” However, it appears that the examination was rather cursory regarding whether appellant might have an acquired psychiatric disorder, including a post-traumatic stress disorder. In his subsequent August 1993 Substantive Appeal, appellant argued that his prisoner-of-war internment and an alleged in-service helicopter crash substantiate his post- traumatic stress disorder claim. Thus, the RO should schedule a more comprehensive psychiatric examination, which might prove beneficial to determine whether any psychiatric disability, including post-traumatic stress disorder, is currently manifested, and if so, its etiology. With regards to the issue of service connection for bilateral hearing loss, on the September 1992 VA audiologic examination, appellant provided a history of in-service noise exposure and impaired hearing since service separation. Mild to profound high-frequency sensorineural hearing loss in the ears was assessed. However, the examiner did not render an opinion as to the etiology of that defective hearing. In light of appellant’s military experience as a rifleman and aviator, presumably involving significant noise exposure, such an examination to determine the etiology of his currently manifested defective hearing is deemed warranted. Concerning the issues of service connection for multiple joint arthritis (including the left shoulder, knees, feet, and thoracic spine) and residuals of fractures to the left shoulder, left forearm, and left jaw, appellant’s numerous post-service military clinical records dated from October 1964 to November 1993 reveal that in February 1969, appellant’s aircraft crashed; and multiple contusions/abrasions were diagnosed. In September 1971, an old 5th metatarsal bone fracture was radiographically reported. A history of several aircraft crashes was reported in May 1973. In February 1979, a 15-year history of left shoulder trauma was noted. Left bicipital groove tendonitis was assessed. In April 1985, a history of left arm fracture in 1941 and left clavicular fracture in 1954 was provided. In March 1987, right knee degenerative joint disease was assessed. In August 1990, degenerative changes were radiographically shown in the thoracic spine and right acromioclavicular joint, and, in February 1992, in the left acromioclavicular joint. On September 1992 VA general medical examination, appellant provided a history of a left forearm fracture in an in- service motorcycle accident and a scapular fracture in an in- service helicopter crash. Radiographically, there was evidence of degenerative joint disease of the knees, thoracic spine, and left acromioclavicular joint; an old fracture of the middle third of the left radius and ulna; and degenerative joint disease of the feet with old fracture deformity of the left 5th proximal phalanx. However, the examiner did not render an opinion as to the etiology of the multi-joint arthritis and left arm fracture. Additionally, the left scapula and left jaw apparently were not radiographically examined to determine whether any residuals of fractures thereof were currently manifested, and if so, their etiology. With regards to the issues of service connection for hypertensive disease, residuals of malnutrition, and residuals of frozen feet, on the September 1992 VA general medical examination, the examiner apparently did not examine appellant to determine the etiology of his hypertensive disease; or whether any residuals of malnutrition and frozen feet were currently manifested, and if so, their etiology. The Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Accordingly, these remaining issues on appeal are REMANDED for the following: 1. The RO should request NPRC and/or ARPC to state in writing whether they have searched all applicable secondary sources for documentation of any relevant treatment the appellant may have received during his military service from June 1940 to October 1964. If NPRC and/or ARPC have not searched alternative sources, the reasons should be stated for the record. If the reason is that NPRC and/or ARPC are unable to search alternative sources without a completed “Form 13055”, or similar authorization form, then the RO should request the appellant to complete and submit this form. In the event that NPRC and/or ARPC have not searched alternative sources and the appellant has submitted this form or it is possible to search without this form from the appellant, then this should be done, and the measures undertaken should be specifically recorded. NPRC and/or ARPC should exercise due diligence in attempting to obtain any additional service medical records. Any additional service medical records should be associated with the claims folder. 2. The RO should contact appellant and request him to provide any relevant clinical records (not already of record) that he may have in his possession, as well as the complete names and addresses of any physicians or medical facilities which have provided him relevant treatment. These include, but are not limited to, the originals or legible copies of medical records (not already of record) from Lyster United States Army Hospital, Fort Rucker, Alabama, and the Hughston Clinic, 6262 Hamilton Road, Columbus, Georgia. All available, clinical records (as distinguished from physicians’ statements based upon recollections of previous treatment) of such treatment should be obtained from the specified health care providers. The appellant should be requested to sign and submit appropriate consent forms to release any private medical reports to the VA. Any records obtained should be associated with the claims folder. 3. The RO should obtain any additional VA medical reports, if any, and associate these with the claims folder. 4. The RO should schedule appellant for an examination by a board of psychiatrists to determine the nature and etiology of any psychiatric disorder that may be present. The examiners should review the entire claims folder and express an opinion, including degree of probability, regarding whether any acquired psychiatric disorder, including a post-traumatic stress disorder, is currently manifested, and if so, is it etiologically related to appellant’s service including prisoner-of-war internment. The report of examination should contain a detailed social, industrial and military history, as well as clinical findings upon which the diagnosis is based, and provide a detailed rationale for the medical conclusions. If medically indicated, a psychological examination, with appropriate testing, should be accomplished. 5. The RO should schedule appellant for an audiologic examination with respect to the issue of service connection for defective hearing. All indicated tests and studies should be performed. The examiner should review the entire claims folder and render an opinion, with degree of probability expressed, as to whether any chronic hearing loss is presently manifested, and if so, its approximate date of onset (i.e., is it causally or etiologically related to service including prisoner-of-war internment). The examiner should comment upon the significance, if any, of appellant’s military occupational specialties as a rifleman and aviator (i.e., was there in- service excessive noise exposure, and if so, did it cause his defective hearing versus post-service noise exposure, aging process, etc.). 6. The RO should schedule appellant for an orthopedic examination with respect to the issues of service connection for arthritis of multiple joints and residuals of fractures to the left shoulder, left forearm, and left jaw. All indicated tests and studies should be performed. The examiner should render an opinion, with degree of probability expressed, as to whether any arthritis of multiple joints (including the left shoulder, knees, feet, and thoracic spine) and residuals of fractures to the left shoulder, left forearm, and left jaw are presently manifested, and if so, their approximate date of onset (i.e., are they causally or etiologically related to service including prisoner-of- war internment). The examiner should comment on whether any arthritis of multiple joints is post-traumatic osteoarthritis, and if so, whether it is causally or etiologically related to service including prisoner-of-war internment versus post-service trauma). 7. The RO should schedule appellant for a cardiovascular examination with respect to the issue of service connection for hypertensive disease. All indicated tests and studies should be performed. The cardiologist should render an opinion, with degree of probability expressed, as to whether hypertensive disease is presently manifested, and if so, its approximate date of onset (i.e., is it causally or etiologically related to service including prisoner-of-war internment). 8. The RO should schedule appellant for an appropriate examination with respect to the issue of service connection for residuals of malnutrition. All indicated tests and studies should be performed. The examiner should render an opinion, with degree of probability expressed, as to whether residuals of malnutrition are presently manifested, and if so, the approximate date of onset (i.e., are they causally or etiologically related to service including prisoner-of-war internment). 9. The RO should schedule appellant for an appropriate examination, such as a peripheral vascular examination, with respect to the issue of service connection for residuals of frozen feet. All indicated tests and studies should be performed. The examiner should render an opinion, with degree of probability expressed, as to whether residuals of frozen feet are presently manifested, and if so, the approximate date of onset (i.e., are they causally or etiologically related to service including prisoner-of- war internment). 10. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon in the reports. 11. The RO should review any additional evidence and readjudicate the issues of service connection for a psychiatric disability, hearing loss, arthritis of multiple joints (including the left shoulder, knees, feet, and thoracic spine), hypertensive disease, residuals of malnutrition, residuals of a left shoulder fracture, residuals of a left forearm fracture, residuals of a left jaw fracture, and residuals of frozen feet. The RO should initially determine whether these service connection claims are well grounded. If the RO determines that these service connection claims are not well grounded, the RO should consider Robinette v. Brown, 8 Vet.App. 69 (1995); See also Caluza v. Brown, 7 Vet.App. 498 (1995). If the RO determines that these service connection claims are well grounded, then these issues should be adjudicated under appropriate statutory and regulatory provisions. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in this REMAND decision, detailing the requested development, have in fact been substantially complied with. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON 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). - 2 -