Citation Nr: 0032134 Decision Date: 12/08/00 Archive Date: 12/20/00 DOCKET NO. 99-16 001A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for depression. 3. Entitlement to service connection for an allergic skin rash. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran served on active duty from October 1969 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) from a February 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board notes that the veteran requested a personal hearing in his August 1999 substantive appeal (Form 9). He was scheduled for a hearing at the RO in February 2000, but failed to appear. There is no indication of record that attempts were made by the veteran to reschedule this hearing date, or to advise the RO of any impeding circumstances that would prevent his appearance. In view of the foregoing, the Board is satisfied that the veteran's hearing request has been withdrawn. REMAND Recently enacted legislation, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), contains extensive provisions modifying the adjudication of all pending claims. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law revises the former § 5107(a) of title 38 United States Code to eliminate the requirement that a claimant come forward first with evidence to well ground a claim before the Secretary is obligated to assist the claimant in the developing the facts pertinent to the claim. The other salient features of the new statutory provisions impose the following obligations on the Secretary (where they will be codified in title 38 United States Code is noted in parentheses): (1) The Secretary must provide application forms and notify the claimant and the representative, if any, if his application is incomplete, and of the information necessary to complete the application (38 U.S.C.A. § 5102); (2) The Secretary must provide the claimant and the claimant's representative, if any, with notice of required information and evidence not previously provided that is necessary to substantiate the claim (38 U.S.C.A. § 5103(a)); (3) The Secretary must indicate which part of the information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary will attempt to obtain on behalf of the claimant (38 U.S.C.A. § 5103(a)); (4) The Secretary must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim (38 U.S.C.A. § 5103A(a)); (5) The Secretary must make every reasonable effort to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(b)(1)); (6) If, after making reasonable efforts to obtain relevant records, the Secretary is unable to obtain the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records, and such notification shall: (a) identify the records the Secretary is unable to obtain; (b) briefly explain the efforts that the Secretary made to obtain those records; and (c) describe any further action to be taken by the Secretary with respect to the claim (38 U.S.C.A. § 5103A(b)(2)). (7) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c) [38 U.S.C.A. § 5103A(c)], the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (38 U.S.C.A. § 5103A(b)(3)). (8) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) [38 U.S.C.A. § 5103A(b)] shall include obtaining the following records if relevant to the claim: (a) The claimant's service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity (38 U.S.C.A. § 5103A(c)(1)). (b) Records of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records (38 U.S.C.A. § 5103A(c)(2)). (c) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(c)(3)). (9) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) [38 U.S.C.A. § 5103A(a)] shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim (38 U.S.C.A. § 5103A(d)(1)). (a) The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim for purposes of paragraph (1) [38 U.S.C.A. § 5103A(d)(1)] if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)- (i) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (ii) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (iii) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. (10) Nothing in this section [38 U.S.C.A. § 5103A] shall be construed as precluding the Secretary from providing such other assistance under subsection (a) [38 U.S.C.A. § 5103A(a)] to a claimant in substantiating a claim as the Secretary considers appropriate (38 U.S.C.A. § 5103A(g)). (11) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary (38 U.S.C.A. § 5107). Available service medical records show no treatment for PTSD, depression, or an allergic skin rash. A June 1972 separation examination report notes normal psychiatric and dermatologic clinical evaluations, and is negative for either a psychiatric disorder or a skin disorder. In December 1998, the veteran filed a claim of entitlement to service connection for PTSD, depression, and an allergic skin rash. He indicated that his PTSD resulted from alleged sexual harassment in service. On VA examination in January 1999, the veteran related that his skin rash had its onset in 1970. He explained that he could eat most foods without any "problems," and denied experiencing an anaphylactic reaction to foods, but indicated that he experienced a "mild case of hives" after eating too much citrus. The veteran reported experiencing a rash on his left forearm after having a tattoo applied two years earlier. He denied a family history of allergies. A physical examination revealed a tiny confluent papular rash, evidencing an eczema-type dermatitis, over the elbows and left forearm. No transudation, exudation, dermographism, or hives were noted. The pertinent diagnosis was allergy of unknown etiology causing severe hives. The examiner explained that the etiology of urticaria is not very clear in the majority of cases. According to a January 1999 Social and Industrial Survey, the veteran's parents divorced when he was 10 years old. His brother and sister were "shipped off somewhere else after the divorce until things settled down," and he lived with his mother and maternal grandmother. The veteran explained that he felt isolated after his parents' divorce. He denied a childhood history of physical or sexual abuse. The veteran reported that he was "traumatized" while serving as a hospital Corpsman in Newfoundland, Canada from 1970 to 1971. He explained that his commander "drummed [him] out of the Corp" because his performance as a dental technician was marginal, and indicated that he was subsequently assigned to "meaningless duties." He stated that his last year in service "really stank," and indicated that he was eventually transferred to a naval hospital in Oakland, California for a two-week psychiatric evaluation. The veteran reported working 30 or 40 jobs over the 26 years following his separation from service, and indicated that he was unemployed over the previous 11/2 years because he "relaxed and kicked back on unemployment." He related that he was addicted to cocaine from 1985 to 1987, but stopped without the benefit of formal treatment. He currently smoked marijuana "once in a while," and consumed approximately 12 cans of beer per year. The veteran reported outpatient psychiatric treatment for approximately three years, but denied receiving any inpatient psychiatric care. During a VA psychiatric examination later that month, the veteran reported that he was reprimanded for sexual misconduct with a patient during his service as a dental technician from 1970 to 1971. He explained that he was accused of "copping a feel" when he accidentally dropped a dental instrument on a patient's lap and picked it up. He was subsequently assigned to general duties, including picking up garbage. The veteran reported that this was a "very frustrating time for him," and indicated that he used marijuana, hallucinogenic drugs, LSD, and intravenous Seconal. In addition, he related that he sought counseling because of "the harassment he was taking." The veteran explained that he was offered a discharge from service through "marijuana amnesty," and was sent to Oak Knoll Naval Hospital in 1972 for a two-week drug evaluation. He received an honorable discharge later that year. The veteran described intrusive feelings of resentment about his last year of service, and opined that it was unfair that he was discharged for occasional marijuana smoking. The diagnostic impression was AXIS I : Cannabis dependent, no remission. AXIS II : No diagnosis. AXIS III : No diagnosis. AXIS IV : Psychosocial environmental factors : 1. Economic situation, stable, adequate. 2. Housing situation, stable adequate. 3. Primary support, married, current tensions related to the veteran's sporadic work history. 4. Alcohol and drug use, continued marijuana use and dependence. 5. Legal issues, debt to IRS. 6. Health issues, blood pressure, attention deficit disorder, and allergic reactions. AXIS V : Global assessment of functioning (GAF) score, 75 to 80; highest level in the last six months, 70 to 80. The examiner commented that there was no indication that the veteran sustained psychological or emotional trauma during service that "bear upon the symptoms which he has to date." He opined that the veteran's current symptoms fell short of DSM-IV criteria for PTSD or any disorder other than cannabis dependence. Based on this evidence, a February 1999 rating decision denied service connection for PTSD, depression, and an allergic skin rash. The veteran filed a notice of disagreement (NOD) with this decision in April 1999. Therein, he noted that the RO did not obtain copies of his service medical records and post-service private treatment records, and maintained that it failed to properly develop his claim for service connection for PTSD due to sexual harassment in service. The veteran submitted a substantive appeal (Form 9) in August 1999, perfecting his appeal. A May 2000 DRO Conference report indicates that the veteran received disability benefits from the Social Security Administration (SSA). The Board notes that VA had adopted manual provisions that acknowledge that individuals claiming in-service personal assault may find it difficult to produce evidence to support the occurrence of the stressor. However, alternate sources are available that may provide credible support to a claim of an in-service personal assault. These include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants such as family members, roommates, clergy, or fellow service members, or copies of personal diaries or journals. VA Adjudication Manual M21-1 (M21-1), Part III, 5.14(c) (February 20, 1996). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions in M21- 1, Part III, 5.14(c), which addresses PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations. Cohen v. Brown, 10 Vet App 128 (1997); YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton v. West, 12 Vet App 272 (1999). Under the provisions of M21-1, a stressor development letter specifically tailored for personal assault cases should be sent to such veterans. While the record reflects that the RO mailed the veteran a PTSD Questionnaire in December 1998, it does not appear that it sent him the personal assault stressor development letter. The Board finds that this should be done. See M21-1, Part III, 5.14(b)(3)(a), 5.14(c)(6), (c)(7); see also Patton. Behavior changes that occurred at the time of the alleged incident may indicate the occurrence of an in-service stressor based on personal assault. After accomplishing all development requested by this remand, the RO must determine whether the veteran exhibited behavior changes in service. See M21-1, Part III, 5.14(c)(8). If there is evidence of behavior changes, it should be determined whether these indicate the occurrence of a stressor. Secondary evidence may need interpretation by a clinician, particularly if it involves behavior changes, and evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, 5.14(c)(9); Patton. Following a detailed review of the claims folder, it does not appear that the RO has attempted to obtain a copy of the veteran's service medical records or Social Security records. There are also indications in the record of the potential existence of additional post service treatment records that may contain findings and a history pertinent to the veteran's claim. The Board notes that these records may be relevant to the disposition of the veteran's claim, both for the purpose of establishing key facts and for purposes of evaluating the probative value of the veteran's evidentiary assertions and other evidence of record. As the VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(c)(3)), in addition to records of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records (38 U.S.C.A. § 5103A(c)(2)), the Board finds that it has no alternative under the new legislation but to remand this matter so that the RO can take the necessary steps to obtain the veteran's service medical records, all of the medical records in the possession of SSA, and any additional outstanding VA treatment records. It should be further noted that whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c) (to be codified at 38 U.S.C.A. § 5103A(c)), the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (to be codified at 38 U.S.C.A. § 5103A(b)(3)). Dixon v. Derwinski, 3 Vet. App. 261 (1992), mandates that when a denial of a claim for benefits rests, in part, on the government's inability to produce records which were once in its custody, an explanation is due the veteran of how service records are maintained, why any search undertaken constituted a reasonably exhaustive search, and why further efforts were not justified. Id. at 264. In this regard, the Board notes that the current record does not indicate that any attempts have been made to obtain records of inpatient treatment from the Oak Knoll Naval Hospital in 1972. If the service department is unable to produce these records, the mandates of Dixon must be followed to explain the adequacy of the attempts to locate such records. Finally, the record contains findings of a current allergic skin rash. Under the provisions of the Veterans Claims Assistant Act of 2000, it appears that the veteran's statements regarding a skin rash in service, and current medical findings are sufficient to require that the veteran be afforded a new VA examination to ascertain the etiology of any current skin disorder, and to provide specific opinions regarding the degree of medical probability that any such disorder is connected to service. Clearly, the current record is not sufficient to make a decision on the claim as there is no competent medical evidence to link a current skin disorder to service, and the veteran's lay assertions of medical causation are not competent to establish a relationship between service and the type of disability at issue here. Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. In order to ensure that all relevant treatment records have been secured, the veteran should be requested to identify all sources of treatment for his PTSD, depression, and allergic skin rash that are not currently a part of the record. After any necessary information and authorization are obtained from the veteran, outstanding records, VA or private, inpatient or outpatient, should be obtained by the RO and incorporated into the claims folder. 3. The RO should also make every effort to obtain the service medical records, any outstanding VA and private treatment records, and a copy of all records relating to the veteran's claim with the SSA. The RO should contact the SSA and request a copy of any decision on the merits of a claim and copies of any medical records reviewed in reaching that determination. If the SSA has made no decision or has no records, this should be documented in the record. The attention of the SSA should be invited respectfully to 38 U.S.C.A. § 5106 (West 1991). The RO is again advised that the efforts to obtain service medical records, VA and SSA records should continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (38 U.S.C.A. § 5103A(b)(3)). 4. Because the service medical records for inpatient treatment may have been filed separately from the veteran's individual service medical record file, the RO should follow all appropriate adjudicative procedures in requesting records of inpatient treatment at the Oak Knoll Naval Hospital in 1972. The RO should assure that the claims file contains either records developed from such a request, or documentation that no records could be located by the record custodians. 5. Since the veteran has alleged stressors which involve allegations of non-combat personal assault, the RO should develop the veteran's claim in compliance with Patton under all of the applicable requirements of VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, Paragraph 5.14(c) (Feb. 20, 1996). The RO should send the veteran a special PTSD personal assault letter and questionnaire in order to assist developing the veteran's claim. The RO should afford the veteran the opportunity to submit any additional evidence in support of his claim for service connection for PTSD, to include statements from relatives. He should be asked to provide any additional information possible regarding the stressful events claimed to have caused PTSD, and to identify potential alternative sources for supporting evidence regarding the stressors he alleges occurred in service. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information can not be conducted. The RO should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate if the veteran has provided sufficiently detailed information to make such a request feasible. 6. The RO should then review the file and make a specific written determination, in accordance with the provisions of 38 C.F.R. § 3.304(f) and M21-1, Part III, 5.14(c), 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 established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 7. Following the above, the RO should determine whether any evidence added to the record warrants a further VA psychiatric opinion or examination. In this regard, if additional relevant evidence is added to the record, the RO should first refer the additional relevant evidence to the VA physician who conducted the examination in January 1999, if he is available, for review and an opinion as to whether the additional evidence would warrant any change in the conclusions the physician reached in January 1999 or whether the additional evidence would warrant a further examination. If the same physician is not available, this fact should be documented in the record and the matter should be referred to another appropriately qualified physician for an opinion as to whether the additional evidence would warrant any change in the conclusions the physician reached in January 1999 or whether the additional evidence would warrant a further examination. If, after review of the additional evidence and the opinion from the examining or reviewing physician, the RO finds that an additional VA psychiatric examination is warranted, the veteran should be examined by a VA psychiatrist to determine whether any psychiatric disorder or disorders are present, and, if so, the correct diagnostic classification of any disorder present. The examination report should include a detailed account of all pathology found to be present. The examiner should provide explicit responses to the following questions: (a) Does the veteran have a psychiatric disorder? (b) If a diagnosis of PTSD is appropriate, the examiner should determine whether the in-service stressor(s) found to be established by the RO are sufficient to produce PTSD. The examiner should be instructed that only the verified events listed by the RO may be considered as stressors. (c) The examiner should identify all existing psychiatric diagnoses, and specifically address the etiology of each disorder. If the examiner determines that any psychiatric disorder was present prior to service, he or she should be asked to provide an opinion as to whether any such disability underwent increase in disability during service (aggravation) beyond the natural progress of the disease. If the examiner notes the presence of any coexistent psychiatric disorders, an opinion should be provided as to whether such psychiatric disorders are causally related to PTSD. The report of the examiner should include a complete rationale for all opinions expressed. All special studies or tests including psychological testing and evaluations, such as the Minnesota Multiphasic Psychological Inventory, deemed necessary by the examiner are to be accomplished. The claims folder or the pertinent medical records contained therein must be reviewed by the examiner in conjunction with the examination. The veteran is advised that failure to report for the scheduled examination may have adverse consequences to his claim as the information requested on this examination addresses questions of causation and symptomatology that are vital in this claim. 38 C.F.R. § 3.655 (2000); Connolly v. Derwinski, 1 Vet. App. 566 (1991). 8. The RO should take appropriate action to have an appropriately qualified medical provider examine the claimant to determine the nature and etiology of any current skin disorder. All indicated studies must be conducted. After the examination and review of the evidence in the claims folder, including service, VA, and private medical records, the examiner should express opinions as to the following: (a) What is the correct diagnostic classification of any current skin disorder found? (b) What is the degree of medical probability, in percentage terms, if feasible, that any current skin disorder is causally related to service or any incident or event in service? A comprehensive report, which represents consideration of the aforementioned factors, as well as the history of the veteran's disability should be provided. The veteran's claims folder and a copy of this remand must be provided to the examiner for review in conjunction with the examination. Any opinions expressed must be accompanied by a complete rationale. The veteran is advised that failure to report for the scheduled examination may have adverse consequences to his claim as the information requested on this examination addresses questions of causation and symptomatology that are vital in this claim. 38 C.F.R. § 3.655 (2000); Connolly v. Derwinski, 1 Vet. App. 566 (1991). 9. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed in its entirety. In particular, the RO should review the requested examination reports and the required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand. In addition, the RO should ensure that all reasonable steps have been taken to secure any outstanding medical records identified by the veteran. If any development requested above has not been furnished, including any requested findings and/or opinions on examination, remedial action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 10. After undertaking any development deemed appropriate in addition to that specified above, the RO should re- adjudicate the issues of entitlement to service connection for PTSD, depression, and an allergic skin rash. If the veteran's claims remain denied, he and his representative should be provided with a Supplemental Statement of the Case, which includes any additional pertinent law and regulations, specifically to include M21-1, Part III, 5.14(c). If the RO is unable to obtain records of the alleged treatment at the Oak Knoll Naval Hospital, the RO should provide an explanation as to how service records are maintained, why any search undertaken constituted a reasonably exhaustive search, and why further efforts were not justified should also be provided. See Dixon. The veteran should then be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The case should then be returned to the Board for further review. No action is required of the veteran until he is notified. The purpose of this REMAND is to accomplish additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 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. Richard B. Frank 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).