Citation Nr: 0002767 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 96-40 432 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to a rating higher than 40 percent for low back strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Associate Counsel INTRODUCTION The veteran served on active duty from July 1960 to July 1961. This appeal arises from a rating decision dated in October 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied an evaluation in excess of 20 percent for the veteran's service-connected low back strain. The veteran appealed to the Board of Veterans' Appeals (BVA or Board). In October 1996, during the pendency of the appeal, the RO increased the evaluation for the veteran's back condition to 40 percent. As the veteran is presumed to seek the maximum available benefit, and a higher evaluation is available, the appeal on the increased rating issue is not abrogated. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 1998, the Board remanded the issue of an increased rating for the veteran's service-connected low back disorder for additional development to include orthopedic and neurological examinations. On remand, the RO continued the denial of the claim; hence, that issue has been returned to the Board for further appellate consideration. The Board also notes that, during the pendency of the remand, the veteran also perfected an appeal from a May 1998 rating action in which the RO denied service connection for an acquired psychiatric disorder, to include PTSD. However, for the reasons explained below, the Board has separated the issue of entitlement to service connection for PTSD from the issue of entitlement to service connection for an acquired psychiatric disorder, as indicated on the cover page of this decision. REMAND Initially, the Board notes that RO has adjudicated the claim involving service connection for an acquired psychiatric disorder as including a claim for service connection for PTSD. However, claims for service connection for psychiatric disorders other than PTSD previously have been considered and denied, in October 1961 (conversion reaction), and in October 1996 (depression). These RO decisions are final and the claims may not be considered on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). In other words, provisions of governing statutes and regulations preclude a full review of the veteran's claims on the merits until after analyzing the question of whether they should be reopened on the basis of new and material evidence. See 38 C.F.R. § 3.156. By contrast, the claim for service connection for PTSD has not been adjudicated previously, and, hence, is considered a new claim. See Ephraim v. Brown, 82 F.2d 399 (Fed. Cir. 1996). Hence, the Board has separated the issues of service connection for PTSD and service connection for an acquired psychiatric disorder and characterized them accordingly. Since the agency of original jurisdiction never addressed the issue of whether new and material evidence had been submitted to reopen the claim for service connection for a psychiatric disorder, it should be remanded to the RO for initial adjudication to avoid any prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As regards the claim for service connection for PTSD, the Board notes that such a claim requires medical evidence establishing a clear diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (1999). In the instant case, the veteran avers that he has PTSD as a result of being assaulted and raped during service. He asserts that he was attacked, beaten, and raped by two men who thereafter threatened further harm if he ever told anyone. He avers that since the assault injured his back, he sought medical attention but reported that the injury was due to a fall. Service medical records do show that the veteran was treated for back problems after a fall in January 1961 and another in June 1961. The veteran claims that he never told anyone about the assault until 1996 when he told his physician and his wife during a psychiatric counseling session. A diagnoses of PTSD is reflected in the veteran's VA outpatient treatment records. The veteran's claim for service connection for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is plausible. This is so in light of the VA diagnosis of PTSD in the file, presumed-to-be credible history of an in- service stressor as relayed above, and medical evidence which raises a possible link between the alleged in-service stressor and PTSD. See Patton v. West, 12 Vet. App. 272, 276 (1999); Cohen v. Brown, 10 Vet. App. 128, 137 (1997); King v. Brown, 5 Vet. App. 19 (1993). Significantly, however, additional development with regard to assisting the veteran in establishing verification of his claimed stressor based on personal assault is warranted. In February 1996, VA established special evidentiary procedures for claims of service connection for PTSD based on personal assault. See VA ADJUDICATION PROCEDURE MANUAL M21- 1, PART III, paragraph 5.14c; (Feb. 20, 1996). The Court recently discussed the relevance of the above VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions in the Patton case. In that case, the Court observed that such provisions provide, among other things, that the general PTSD stressor development letter is inappropriate for this type of claim, and state instead that the RO should rely on special letter formats expressly developed for use in personal-assault claims. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 (c)(4, 6 and 7). The Court further noted that these procedures outline alternative sources of corroborating evidence in the event that there is no documentation that an alleged personal assault occurred. The Board's review of these provisions shows that such documentation may include testimonial statements from confidants such as family members or clergy, as well as evidence of behavioral changes to include as established by personnel and other records and lay statements. As such, on remand, the RO must ensure that the special evidentiary provisions relating to claims for service connection for PTSD based on a personal assault, which are contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14, are complied with. In completing the actions requested on remand, the RO also should comply with the relevant M21-1 provision concerning the post-development determination as to whether a claimed stressor is (or, is not) established by the record. In this regard, the Board would emphasize that the requirement that credible evidence establish that the stressful event actually occurred does not mean that the evidence actually proves that the incident occurred, but, rather, that the preponderance of the evidence, as a whole, supports the conclusion that it occurred. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c)(3). After the above development has been completed, the RO should determine whether the record establishes the existence of the alleged stressor in service. If so, then, and only then, should the case be referred for a medical examination to determine the sufficiency of the stressor(s) and whether the remaining elements required to support the diagnosis of PTSD have been met. In such a referral, the adjudicators should specify to the examiner precisely what stressor(s) have been accepted as established by the record, and the medical examiner must be instructed that only those events may be considered in determining whether stressor(s) to which the veteran was exposed during service were of sufficient severity as to have resulted in a current diagnosis of PTSD As regards the veteran's claim for a higher evaluation for his low back condition, the Board also notes, preliminarily, that such claim is well grounded based upon the veteran's assertions of increased disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). As noted above in the introduction, this issue was remanded by the Board in July 1998 for additional development to include VA orthopedic and neurological examinations. When previously remanding this claim, the Board specifically requested, among other things, that all tests/studies deemed necessary by examiners should be accomplished and that the examiner should state whether or not there is clinical evidence of a demonstrable deformity of the vertebral body at L5-S1 or signs of a bulging disc in the area of his low back. In accordance with the remand, the veteran underwent a VA orthopedic examination in December 1998. However, it does not appear that the examiner performed a neurological examination of the veteran's service-connected low back disorder as had been requested in the remand. Additionally, while the examiner performing the December 1998 may have referred to old tests/studies, he did not perform any new X- rays, electromyography (EMG), or nerve conduction studies (NCS) which could provide medical findings necessary to properly rate the current severity of the disability due to the veteran's service-connected low back disorder. Furthermore, the examining physician's response to the effect that an old disk herniation was seen on a past MRI fails to adequately respond to the Board's specific question about the current presence or absence of a deformity of the vertebral body or of a bulged disk. Thus, the Board finds that the RO should schedule the veteran to undergo orthopedic and neurological examinations, as previously requested, to ascertain the nature and extent of his service-connected low back condition. The Board emphasizes that the Court has specifically mandated that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. 268 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Accordingly, these matters are hereby REMANDED to the RO for the following action: 1. The RO should obtain and associate with the record a complete set of the veteran's service personnel records. 2. The RO should adjudicate the issue of whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder other than post- traumatic stress disorder (PTSD). Thereafter the veteran, and his representative should be notified of the outcome of the RO decision, and afforded an opportunity to respond. The veteran should clearly indicate in a signed writing if he does not wish to pursue this claim. 3. The RO should send the veteran a personal assault stressor development letter that comports with the special procedures established in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 for claims for service connection for PTSD predicated on such in-service assaults. 4. The RO should request that the veteran submit a list (concerning names, dates and addresses) for all alternative objective sources that may establish the occurrence of the claimed stressor(s). This should specifically include medical records from physicians or caregivers who may have treated the veteran either immediately following an incident or sometime thereafter; and military and/or civilian police reports. After securing any necessary release form(s), the RO should directly contact the sources that are identified, obtain copies of the relevant records in their possession that are not already in the claims file, and associate such records with the claims file. The aid of the veteran and his representative in securing such records should be enlisted, as needed. However, if any such records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 5. The RO should also contact the veteran and request that he submit signed statements from persons having personal knowledge of his claimed stressor(s), to include confidants such as family members, roommates, fellow service members or clergy. The veteran should be notified that statements from persons who knew the veteran during his period of active duty as well as subsequent to separation from military service will be considered. Each person's name and complete address should clearly be shown. Each statement should describe exactly what the person observed and mention specific dates and places. A person on active duty at the time should include his or her service number and military unit. The veteran should also submit copies of any personal diaries or journals pertaining to the occurrence of the claimed stressors. 6. Following receipt of responses from the veteran and all contacted sources, and after accomplishing any additional development deemed warranted by the record, the RO should prepare a report detailing the nature of the alleged in- service stressor(s), and whether any such stressor is established by the record; this report is then to be added to the claims file. If any alleged in-service stressor is deemed established by the record, the RO should undertake the development requested in paragraph 7 and thereafter. If, however, the RO determines that the record establishes no alleged in-service stressor, the RO should skip the development requested in paragraph 7. 7. If and only if the record establishes the occurrence of an alleged stressor coincident with his service in the military, the veteran should be examined by a VA psychiatrist to determine whether it is at least as likely as not that he has PTSD is a result of such stressor. Towards this end, the RO should provide to the examiner the report described in paragraph 6, above, and the examiner should only rely only upon the stressor(s) deemed established by the record in rendering his diagnosis. If a diagnosis of PTSD is deemed appropriate, the examiner should explain how the diagnostic criteria of the DSM-IV are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the in-service stressors found to be established by the RO. It is imperative that the entire claims folder, containing all evidence relevant to the case (to include a complete copy of this REMAND), should be provided to and be reviewed by the VA psychiatrist who is designated to examine the veteran. The typewritten report of the examination must include all examination findings, as well as the rationale underlying all opinions expressed, citing, as necessary, to specific evidence in the record. The report should be associated with the other evidence on file in the veteran's claims folder. 8. The RO should schedule the veteran to undergo orthopedic and neurological examination of his low back. The claims folder, to include complete copies of this and the Board's July 1998 remand, must be made available to and be reviewed by the examiner in conjunction with the examinations, and any examination reports should reflect consideration of the veteran's pertinent medical history. All current tests/studies deemed necessary by the examiners should be accomplished, and all clinical findings should be reported in detail. The examiner should be asked to clearly indicate whether or not the veteran currently suffers from any demonstrable deformity of the vertebral body of the lumbosacral spine. In so doing, the physician should note any signs of a bulging disc in this area of his low back, and comment on the presence or absence of each of the following: sciatic neuropathy; pain; demonstrable muscle spasm; absent ankle jerk; and any other neurological findings. The examiner should also be asked to comment on the severity and consistency of the any symptoms found. As was requested in the prior remand, the examiners should indicate the extent to which the veteran has functional impairment in his low back as a result of pain, limitation of motion, weakness, excess fatigability, or incoordination- including at times when his symptoms are purportedly most noticeable, such as during prolonged sitting or standing, or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45 (1997); DeLuca v. Brown, 8 Vet. App. 202, 205-7 (1995). In this regard, the examiners should expressly respond to the following questions: (i) Does the veteran have limitation of motion? If so, what are the precipitating causes, and to what extent is range of motion restricted? (note: when measuring the veteran's range of motion in degrees, the examiner should also be asked to give the normal range of motion for comparison purposes). (ii) Does the veteran have instability, weakness or decreased strength? Does he become easily fatigued on account of the service- connected disability, including during prolonged physical activity of any sort, or during routine activities that are part and parcel of his day-to-day experiences (e.g., dressing or grooming himself, bathing, attending to the needs of nature, etc.)? (iii) Are there any objective clinical manifestations that would support a conclusion that the veteran has functional impairment in his low back as a result of pain attributable to the service- connected disability? (iv) Is there clinical evidence of sciatic neuropathy or radiculopathy? If so, to what extent? (v) Does the veteran have incoordination or an impaired ability to execute skilled movements smoothly as a result of the service- connected disability affecting his low back? (vi) For each of the above-cited symptoms identified, the examiners should comment on the severity of the symptom, and its effects on the veteran's ability to function in routine activities involved in his day-to-day living experiences; at his job; during prolonged physical activity of any sort; or during flare-ups. The examiners must set forth the rationale underlying any conclusions drawn or opinions expressed, and should, if necessary, cite to specific evidence in the record. The examiners should record pertinent medical complaints, symptoms, and clinical findings. The reports of the examinations should be associated with the veteran's claims folder. 9. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. See Stegall, supra. If any requested action is not undertaken, or is deficient in any manner, appropriate corrective action should be undertaken. 10. After completion of the foregoing, and any other development deemed warranted by the record, the RO should adjudicate the veteran's claim for service connection for PTSD based on an in-service assault, e.g., the alleged in- service rape, on the basis of all pertinent evidence of record and legal authority. The RO must provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, specifically to include VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14. In doing so, the RO must address all issues and concerns that were noted in this REMAND. 11. After completion of the foregoing, and any other development deemed warranted by the record, the RO should adjudicate the veteran's claim for service connection for an increased rating for a higher evaluation for his low disorder on the basis of all pertinent evidence of record and legal authority. The RO must provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, specifically to include 38 C.F.R. §§ 4.40 and 4.45, and the DeLuca decision, cited to above. In doing so, the RO must address all issues and concerns that were noted in this REMAND. 1I. If any benefit sought is not granted, the veteran and his representative must be furnished a supplemental statement of the case and given an opportunity to submit written or other argument in response. The case should then be returned to the Board for further appellate consideration. The purpose of this remand is accomplish additional development and adjudication, and by this action, the Board intimates no opinion, either favorable or unfavorable, as to the ultimate disposition warranted. The veteran need take no action until otherwise notified, but he and/or his representative may furnish additional evidence and argument within the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment by the RO. 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 Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).