Citation Nr: 0030132 Decision Date: 11/17/00 Archive Date: 11/22/00 DOCKET NO. 99-01 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for migraine headaches with ocular symptoms, currently evaluated as 30 percent disabling. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Jeffers, Counsel INTRODUCTION The veteran served on active duty from June 1984 to November 1994. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the New Orleans, Louisiana, Department of Veterans (VA), Regional Office (RO), which denied entitlement to the benefits sought. The veteran cancelled her scheduled October 2000 personal hearing before a Veterans Law Judge in Washington, DC. REMAND i. Adequacy of Substantive Appeal for Adjustment Disorder Claim "[I]t is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and once apparent, must be adjudicated." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see also Johnson (Anne) v. Brown, 7 Vet. App. 25, 27 (1994) (per curiam); Zevalkink v. Brown, 6 Vet. App. 483, 488 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996). Accordingly, a court or tribunal always has authority to determine its jurisdiction over a case. See Phillips v. Brown, 10 Vet. App. 25, 30 (1997) (citing Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L. Ed. 939 (1946)); Breslow v. Brown, 5 Vet. App. 560, 562 (1993)). The controlling laws and regulations provide that an appeal consists of a timely NOD in writing and, after an SOC has been furnished, a timely substantive appeal. A substantive appeal shall be filed within 60 days from the date of mailing of the SOC, or within the remainder of the one-year period from the date of mailing of the notification of the initial review and determination being appealed, whichever period ends later. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. §§ 20.202, 20.203 (1999). VA's Office of General Counsel has determined that if a claimant has not yet perfected an appeal and VA issues an SSOC in response to evidence received within the one-year period following the mailing date of notification of the determination being appealed, the claimant must be afforded at least 60 days from the mailing date of the SSOC to respond and perfect an appeal, even if the 60-day period would extend beyond the expiration of the one-year period. To the extent that 38 C.F.R. § 20.304 purports to provide otherwise, it is invalid and requires amendment. See 38 C.F.R. § 20.302(c) (1999); see also VAOPGCPREC 9-97 (1997); 62 Fed. Reg. 15567 (1997). The Board is bound by the General Counsel's interpretation of the regulation. 38 U.S.C.A. § 7104(c) (West 1991). A thorough review of the record in the present case reveals that a timely and adequate substantive appeal does not appear to have been received with regard to the RO's August 1998 decision to deny a claim of entitlement to an increased rating for service-connected adjustment disorder with mixed anxiety and depression. In the instant case, the veteran was informed of the RO's adverse determination by VA letter issued on September 10, 1998. The RO determined that she filed a timely NOD, and the issue was included in the statement of the case issued on November 20, 1998. On January 6, 1999, the veteran filed a substantive appeal wherein she specifically enumerated the issues that she wished to appeal; entitlement to an increased rating for adjustment disorder was not mentioned. In May and June of 1999, prior to the expiration of the one- year delimiting period, the RO received additional evidence with respect to the veteran's claims and the adjustment disorder issue was, pursuant to the General Counsel's opinion cited above, appropriately included in supplemental statements of the case issued on May 21, 1999 and November 30, 1999. Under the cited laws, precedent opinions and regulations, the veteran had until January 30, 2000 to file a timely and adequate appeal with respect to her claim for an increased rating for adjustment disorder. Review of the record reveals that neither the veteran nor her accredited representative submitted any statement that can reasonably be construed as a substantive appeal respect to this issue. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that, when the Board addresses in its decision a question that has not yet been addressed by the RO, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on the question, whether she has been given an adequate opportunity to actually submit such evidence and argument, and whether the SOC or SSOC provided the claimant fulfills the regulatory requirements. See 38 C.F.R. § 19.29 (1999). If not, the matter must be remanded to the RO to avoid prejudice to the claimant. See Marsh v. West, 11 Vet. App. 468, 470 (1998) (citations omitted) (the Board's obligation to assess its own jurisdiction cannot come at the expense of the procedural rights that belong to the appellant). In this regard, the Board notes that this is the first time that the veteran has been notified that a timely and adequate substantive appeal was not filed with respect to the aforementioned claim. She has not yet been afforded an opportunity to present argument and/or evidence on this question, nor has she been provided a SOC or SSOC with respect to the issue of the timeliness and adequacy of her appeal. Consequently, the Board will remand the matter to the RO to avoid the possibility of prejudice. 38 C.F.R. § 19.9 (1999). ii. Migraine Headaches & PTSD On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). This law rewrites the 38 U.S.C. §§ 5100-5107 "duty to assist" provisions, to eliminate the well-grounded claim requirement, and requires the Secretary to provide additional assistance in developing all facts pertinent to a claim for benefits under title 38 of the United States Code. The Board will apply the law cited above as this version is clearly more favorable to the appellant's claim. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (where law or regulation is amended while a case is pending, the version most favorable to the veteran will apply); see also VAOPGCPREC 03-2000 (Apr. 10, 2000). VA has a duty to obtain VA examinations which provide an adequate basis upon which to determine entitlement to the benefit sought, as well as the duty to obtain all relevant treatment records referred to by the veteran. Littke v. Derwinski, 1 Vet. App. 90 (1991). Examinations must also address the rating criteria in relation to the veteran's symptoms. Johnson v. Brown, 9 Vet. App. 7 (1996). Consequently, examinations by specialists are recommended in those cases which present a complicated disability picture. Hyder v. Derwinski, 1 Vet. App. 221 (1991). Although the veteran was last afforded a VA neurological examination in March 1998, the Board observes that no opinion was expressed with respect to the extent to which her service-connected migraine headaches affect her economic adaptability. Such an opinion is required for the next higher disability evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Therefore, a more comprehensive examination of the veteran is required. Additionally, the Board observes that eligibility for a PTSD service connection award requires more; specifically, three elements must be present according to VA regulations: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999) (as amended, 64 Fed. Reg. 32808, June 18, 1999). As amended, section 3.304(f) provides that if the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See also 38 U.S.C.A. § 1154(b) (West 1991). In a February 1998 statement, the veteran alleged that she is seeking service connection for PTSD as a result of sexual trauma in service. Specifically, she alleged that a noncommissioned officer raped her. Service medical records show that the veteran was otherwise being treated for depression and was hospitalized for suicide attempt in August 1994. The Board notes that the veteran's own statements cannot, as a matter of law, establish the occurrence of non- combat stressors. See Dizoglio v. Brown, 9 Vet. App. 163 (1996). The Veterans Benefits Administration Manual M21-1 (Manual M21-1) requires that "[i]n cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence." Manual M21-1, Part III, 5.14(b)(3) (April 30, 1996). As to personal assault PTSD claims, Manual M21-1, Part III, 5.14(c) indicates that a specific letter for the development of those claims must be provided to the veteran. While the veteran has already submitted a buddy statement in support of her claim, the Board notes that she has not been adequately informed as to other alternative evidence which may be submitted in support of her claim. Therefore, additional assistance is necessary. The Board reminds the RO that, in verifying the existence of an in-service stressor and any other material issue, the equipoise standard of proof, not the preponderance standard, must be applied. See Patton v. West, 12 Vet. App. 272 (1999); see also YR v. West, 11 Vet. App. 393, 399 (1998) ("[i]n a system where equipoise is the standard of proof, evidence of this nature cannot be ignored"). Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the NPRC for the purpose of obtaining any additional service records (administrative and medical) pertaining to the appellant's military service in the Army, and specifically, any and all records associated with his personnel folder. The RO should also request that NPRC conduct a search and provide copies of any additional inpatient, clinical, hospital or laboratory reports pertaining to the veteran, especially those pertaining to her August 1994 hospitalization. All attempts to secure these records should be undertaken, to include referrals to all potential custodians of her service records in the event NPRC is unable to locate these records. All attempts to obtain records from the NPRC which are ultimately unsuccessful should be documented in the claims folder, and in accordance with the VCAA, § 5103A(b)(2) and (3), the RO should (1) notify the appellant of the records it was unable to obtain, briefly explain the efforts made to obtain such records, and describe any further action that the RO will take to obtain such records; and (2) continue its efforts to obtain any records from the NPRC while the case is under development on remand until it becomes reasonably certain that such records cannot be obtained because they do not exist or until it becomes reasonably certain that further efforts to obtain records from the NPRC would be futile. 2. The veteran should be requested to identify all sources of recent treatment received for her claimed disorders, and to also furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source she identifies. Copies of the medical records from all sources she identifies, including VA records (not already associated herein), should then be requested. All records obtained should be added to the claims folder. All attempts to obtain records which are ultimately not obtained should be documented, and in accordance with the VCAA, § 5103A(b)(2), the RO should notify the appellant of the records it was unable to obtain, briefly explain the efforts made to obtain such records, and describe any further action that the RO will take to obtain such records. For any VA or other Federal department or agency records, the RO should, in accord with the VCAA, § 5103A(b)(3), continue its efforts to obtain any records while the case is under development on remand until it becomes reasonably certain that such records cannot be obtained because they do not exist or until it becomes reasonably certain that further efforts to obtain records from the such sources would be futile. 3. Further, the RO should contact the appellant and inform her that she may submit any other corroborating evidence she may have pertaining to alleged stressors experienced during service. The appellant should be advised that a meaningful research of her stressors will require her to provide the "who, what, where and when" of each stressor. Further, the RO should inform the appellant that she may submit any other evidence to verify her alleged stressors from military as well as nonmilitary sources. The RO should assist the appellant in obtaining such evidence, as appropriate. In connection with this development, the RO should ensure that all appropriate special development procedures mandated by M21-1, Section 5.14(c) for verification of non-combat stressors is fully accomplished and documented in the claims folder, to include issuance of the special development letter to the appellant advising her of the steps necessary to verify her non-combat stressors. 4. If indicated by the appellant's response, the RO should also request follow-up verification of her stressor accounts by the USASCRUR. USASCRUR should attempt to verify any detailed stressor information provided by the appellant. All documents, correspondence, reports or statements obtained or generated as a result of these inquiries should thereafter be associated with the claims folder. 5. Following the above, the RO must make a specific determination, based on the complete record, with respect to whether the veteran was exposed to a stressor or stressors in service, and if so, the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the laws, regulations and caselaw cited in the discussion above. If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor or stressors in service it has determined the record establishes. In reaching this determination, the RO should address any credibility questions raised by the record. 6. If, and only if, the RO finds that the veteran has a verified stressor, the veteran should be afforded a VA psychiatric examination. The examiner should be informed as to which stressors have been verified for the purpose of determining whether exposure to a stressor in service has resulted in current psychiatric symptoms. The examiner should indicate whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. The examination should include all appropriate tests and evaluations, including psychological testing with PTSD subscales. The examiner should utilize the Fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), in arriving at diagnoses, enumerating the specific diagnostic criteria satisfied and the specific findings meeting the criteria for any disorder found. If PTSD is diagnosed, the stressors supporting the diagnosis must be identified, as must be the evidence documenting the stressors. If the examiner finds that PTSD is related to stressors other than those claimed to have occurred in service, it should be so noted and explained. If PTSD is diagnosed, the examiner should specify what symptoms are related to PTSD as opposed to any other psychiatric disorders. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. The claims folder, including a copy of this remand decision, should be made available for review by the examiner in conjunction with the examination. 7. In addition, the veteran must be scheduled for a VA neurological examination in order to determine the nature and severity of her service- connected migraine headaches with ocular symptoms. Therefore, the veteran's claims folder should also be made available to and independently reviewed by this examiner prior to examination of the veteran. X-rays, laboratory tests, and/or other diagnostic studies, should be performed as deemed appropriate by the examiner. The neurological examiner must then correlate his or her findings and indicate whether it is more likely, less likely or as likely as not that the veteran's migraine headaches are of such frequency and severity as to produce severe economic inadaptability. A discussion of the salient facts and the medical principles involved will be of considerable assistance to the Board. The examination reports should then be associated with the veteran's claims folder. 8. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. The RO should then re-adjudicate the veteran's claims of entitlement to an increased disability rating for migraine headaches and service connection for PTSD. If either of these determinations remain adverse to the veteran, the RO should furnish the veteran and her accredited representative a supplemental statement of the case in accordance with 38 U.S.C.A. § 7105 (West 1991), which summarizes all of the evidence and sets forth the applicable legal criteria pertinent to this appeal, including the provisions of the VCAA. The veteran should then be afforded the opportunity to respond thereto. 9. The veteran should also be contacted, through her representative, and notified of her right to submit further evidence, argument, and/or comment with regard to the question of the timeliness and adequacy of her appeal with respect to the denial of an increased disability rating for service-connected adjustment disorder with mixed anxiety and depression. She should be informed of her right to request a hearing on the matter if she so desires. After the above development has been completed, the RO should issue the veteran a SSOC. The SSOC should contain a summary of the pertinent facts and a summary of the laws and regulations applicable to the proper filing of appeals, with appropriate citations (including 38 C.F.R. §§ 19.32, 19.34, 20.200, 20.202, 20.203, 20.302). Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The purpose of the REMAND is to further develop the record. No action is required of the veteran until she is notified by the RO; however, the veteran is advised that failure to cooperate by not reporting for any scheduled examination may result in the denial of her claims. 38 C.F.R. § 3.655 (1999). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2000) (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. THOMAS J. DANNAHER Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).