Citation Nr: 0031334 Decision Date: 11/30/00 Archive Date: 12/06/00 DOCKET NO. 92-09 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder (other than PTSD). 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis of the right hip. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from June 1977 to July 1979. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 1991 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in May 1994. The RO in New York, New York, presently has jurisdiction over the appeal. It appears from the appellant's "Statement in Support of Claim" dated in November 1998 that he may have raised a new claim seeking VA disability compensation benefits for "gas exposure." In this statement he also referred to his right hip and residuals of exposure to cold, but it is clear from his contentions of record that these issues are encompassed in his appealed claim for the right hip arthritis disorder (he claims that exposure to cold in service caused him to acquire arthritis in his right hip). The RO should therefore contact the appellant for the purpose of determining whether he is claiming service connection for a disability related to "gas exposure," and if so, develop and adjudicate the claim in accordance with established procedures. It is also noted that the representative's "Memorandum" dated January 3, 2000, indicated that the Board's decision of December 16, 1980 was not final because of alleged due process rights violations, specifically, the appellant was not afforded a personal hearing at the RO in connection with that appeal, as was requested in his "Statement in Support of Claim" dated in June 1980. Notwithstanding the fact that the record shows that the RO scheduled the appellant for a personal hearing on July 11, 1980, at 9:30am, for which he failed to appear, the appellant is hereby advised that if he desires to pursue this matter further, he must file a motion under 38 C.F.R. 20.1400 et seq. (2000) (revision of Board decisions on grounds of clear and unmistakable error). REMAND Notwithstanding the efforts undertaken by the RO to prepare this case for appellate review, the Board finds that another remand is in order. The Board finds that additional development of the record is necessary in light of VA's duty-to-assist obligation under the newly amended versions of 38 U.S.C.A. §§ 5103A and 5107(a). See Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (eliminates well-grounded claim requirement for all claims seeking entitlement to veterans benefits and provides specific statutory criteria for developing disability compensation claims). In this regard, additional medical records may be pertinent to the proper adjudication of the appellant's claims. Of record is a favorable decision by an administrative law judge of the Social Security Administration (SSA) dated in February 1983, which includes a list of exhibits describing the evidence considered by the SSA in connection with that agency's award of disability benefits to the appellant for his psychiatric disorder. The RO should therefore take action to obtain all records that the SSA has on the appellant. In addition, the RO should request that he provide a detailed account of his medical treatment provided in the post service period, and, if indicated by his response, action should be taken to obtain such records that have not been previously associated with the record. Further, while it appears that the appellant's service medical and personnel records in the file are complete, in a letter dated in April 1997, the Department of Defense agency responsible for investigating stressor accounts at that time, the U. S. Army & Joint Services Environmental Support Group (presently known as the U. S. Armed Services Center for Research of Unit Records (USASCRUR)), advised the RO that additional information might possibly be found in the appellant's Official Military Personnel File (OMPF), which would include "orders of personnel actions." As it does not appear that orders of such nature are of record, the RO should take action to obtain any additional service records that might be available from the National Personnel Records Center (NPRC) in St. Louis, Missouri. Pursuant to the newly enacted VCAA, requisition and consideration of all available VA and private medical records, as well as any records from the SSA, NPRC or other indicated Federal department or agency, that might be relevant to an issue on appeal is necessary for the adjudication of the appellant's claims for VA disability compensation benefits. With respect to the appellant's claim of entitlement to service connection for PTSD, the Board notes that the regulation governing such claims, 38 C.F.R. § 3.304(f), was amended during the pendency of this appeal. 64 Fed. Reg. 32807 (June 18, 1999). The new version of the regulation is effective from March 7, 1997, and hence, as this claim was still pending on that date, the revised version must be considered, Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), which has not been done in this case, to include the most recent adjudication the claim by supplemental statement of the case in July 2000. One of the changes to section 3.304(f) stipulates that an award of service connection for PTSD depends on whether there is medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which the Board observes is a reference to a diagnosis made on the criteria set forth in the DSM-IV. In lieu of the fact that additional evidentiary development will be required, to include stressor-verification development, as set forth below, the Board believes that the RO should have the appellant examined by VA in order to determine whether he has a DSM-IV diagnosis of PTSD based on his reported stressors and a complete review of all the evidence in the claims file. The Board notes that precedent holdings of the United States Court of Appeals for Veterans Claims (the Court) issued during the pendency of this appeal provide additional guidance for the adjudication of claims for service connection for PTSD, particularly, with respect to non-combat stressors, at issue in this case. See e.g. Patton v. West, 12 Vet. App. 272 (1999) (verification of non-combat stressors); Suozzi v. Brown, 10 Vet. App. 307 (1997) (sufficiency of information to verify stressors); Cohen v. Brown, 10 Vet. App. 128 (1997) and Moreau v. Brown, 9 Vet. App. 389 (1996). In the Patton case, the Court found error in the Board's decision because the Board did not discuss the special evidentiary procedures for PTSD claims based on non-combat stressors. With regard to combat service/stressor verification, the record does not reflect that the appellant received any individual awards or decorations for valor, combat experience or combat injuries to establish that he engaged in combat with the enemy. Where a veteran-claimant did not serve in combat or the stressor is not related to combat, his contentions/testimony of record, standing alone, will not be enough to establish the occurrence of the alleged stressor. West (Carelton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Instead, the record must contain evidence which corroborates his accounts as to the occurrence of the claimed stressor, and special development procedures are required pursuant to applicable regulations and manual provisions. 38 C.F.R. § 3.304(d), (f); VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, Section 5.14(c) (Feb. 20, 1996). Although the appellant has provided stressor accounts in connection with this PTSD claim, which are non-combat based (alleges that he accidentally shot and/or injured two unknown civilians/soldiers while on border patrol duty near the German-Czechoslovakian border in 1979), in light of the Court's precedent holdings cited above, the Board finds that it is necessary to address the matter of whether there is sufficient corroboration of the appellant's stressors upon completion of the special development procedures under M21-1, Part III, Sec. 5.14(c) for non-combat stressors, and upon completion thereof, further medical development to determine 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, as described in detail in the M21-1. With respect to the issue of stressor-verification, it is noted that in Suozzi, the Court expressly held that a veteran need not prove "every detail" of an alleged stressor. Id. at 311. In Moreau, the Court stated that credible supporting evidence of a stressor may be obtained from service records or "other sources." Id. at 395. Accordingly, this case is REMANDED to the RO for the following development action: 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 OMPF, as alluded to above. All attempts to secure these records should be undertaken, to include referrals to all potential custodians of his service records in the event NPRC is unable to locate these records. In addition, the NPRC should be requested to proceed with all reasonable alternative- source searches which may be indicated by this request. Further, the RO should proceed with all reasonable follow-up referrals that may be indicated by this inquiry, if appropriate. Efforts to obtain these records should be documented and any records received in response to this request should be associated with the claims folder. 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 RO should contact the SSA for the purpose of obtaining any and all medical records from that agency which pertain to an award of disability benefits to the appellant. The Board is particularly interested in obtaining the medical records which correspond to the "List of Exhibits" from the February 1983 SSA decision. The RO should obtain copies of all award letters/notices, administrative/appellate decisions, hearing transcripts, if applicable, and all medical records relied upon concerning claims/appeals filed by the appellant for SSA benefits. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. All attempts to obtain SSA records 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 SSA 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 SSA would be futile. 3. In addition, the RO should contact the appellant and request the names and addresses of all VA and/or private physicians and/or medical facilities where he has received medical treatment in the post service period for his psychiatric disorders, to include PTSD, as well as for his arthritis and hypertension disorders, which have not already been associated with the record. All VA records identified should be obtained pursuant to established procedures. With regard to private medical records, after securing appropriate releases from the appellant, attempts to secure copies of records pertaining to any indicated private physicians and/or facilities should be undertaken. All records received in response to the request should be associated with the claims folder. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. 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. 4. Further, the RO should contact the appellant and inform him that may submit any other corroborating evidence he may have pertaining to alleged stressors experienced during service. The appellant should be advised that a meaningful research of his stressors will require him to provide the "who, what, where and when" of each stressor. Further, the RO should inform the appellant that he may submit any other evidence to verify his 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 him of the steps necessary to verify his non-combat stressors. 5. If indicated by the appellant's response, the RO should also request follow-up verification of his 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. 6. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to a stressor or stressors in service, and if so, what was the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the amended regulation and caselaw cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the appellant's allegations of stressors occurring, the RO should specify that information. The RO should also indicate 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 and if so should decide whether this evidence needs the interpretation by a clinician. See M21- 1, Part III, 5.14c (9). 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 are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 7. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. This examination, if feasible, should be conducted by a psychiatrist who has not previously examined, evaluated or treated the appellant. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record and found sufficient to produce PTSD by the examiner. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. 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. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 8. In addition, the RO should schedule the appellant for appropriate VA compensation examination(s) for the purpose of addressing the nature and etiology of the other non-psychiatric disorders for which service connection is being sought, as listed on the title page of this REMAND. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. All necessary tests and studies should be conducted, and in conjunction with a thorough review of the evidence in the claims folder, and with the clinical findings noted on examination, each examining VA physician(s) should determine whether the appellant has any diagnosed disorder(s) of the right hip (claimed as arthritis due to in-service exposure to cold weather conditions) and cardiovascular system (claimed as hypertension), and if so, render opinions addressing whether it is at least as likely as not that any current disability for the disorders claimed was incurred in or aggravated during the appellant's period of active duty military service between June 1977 and July 1979. The physician(s) should also discuss any other affirmative evidence that would indicate that the appellant is not suffering from one or more of these disorders. The VA physician(s) must fully consider the appellant's service medical records and all post service medical evidence, with the purpose of reconciling the chronological and etiological questions that exist. Detailed reasons and bases for all diagnoses and opinions reached should be provided. The report of examination, including the reports of all completed tests or special studies, should thereafter be associated with the appellant's claims folder. 9. The appellant must be given adequate notice of any requested examination, which includes advising him of the consequences of failure to report for a scheduled examination. If he fails to report for an examination, this fact should be documented in the claims folder. A copy of all notifications must be associated with the claims folder. 10. Subsequently, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. Specific attention is directed to the examination reports to ensure that they are in compliance with the directives of this REMAND. 11. After completion of the above, the RO should readjudicate the issues on appeal with consideration given to all of the evidence of record, including any additional medical evidence obtained by the RO pursuant to this REMAND. The readjudication of the PTSD claim must be on the merits, as the well-grounded claim requirement is no longer part of the statutory scheme governing veterans benefits, and in accord with the revised version of 38 C.F.R. § 3.304(f), as amended effective from March 1997. Further, with respect to the other claims, in the event the RO determines that new and material evidence has been submitted pursuant to 38 C.F.R. § 3.156, the readjudication of these issues must be on the merits as well in light of the elimination of the well-grounded claim requirement by the VCAA. The RO should also carefully consider the benefit of the doubt rule as to each issue, and in this regard, if the evidence is not in equipoise the RO should explain why. Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 12. The appellant is hereby informed that he should assist the RO, to the extent possible, in the development of his claim, and that failure to cooperate or to report for any scheduled examination may result in an adverse decision. Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). Thereafter, the case should be returned to the Board, if in order. The appellant need take no action until otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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. JOAQUIN AGUAYO-PERELES 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).