Citation Nr: 0033061 Decision Date: 12/19/00 Archive Date: 12/28/00 DOCKET NO. 98-18 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral foot disorder (claimed as residuals of jungle rot). 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for an upper back disorder. 5. Entitlement to service connection for a right ulnar nerve disorder, including claimed as secondary to an upper back disorder. 6. Entitlement to service connection for a rash on the thighs. 7. Entitlement to service connection for an ulcer disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from September 1965 to September 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 1998 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). REMAND Notwithstanding the efforts undertaken by the RO to prepare this case for appellate review, the Board finds that a remand is in order. The regulation governing the award of service connection for PTSD, 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 was not done when the RO last adjudicated the claim by supplemental statement of the case in February 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, nor are there official military documents verifying that he had a combat occupational specialty such as rifleman, mortarman, etc., 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 lay testimony, by itself, 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 testimony as to the occurrence of the claimed stressor, and special development procedures are required pursuant to the M21-1. 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 provided stressor accounts in statements dated in February 1998 and October 1998, some of which are combat-related while others are non-combat based (for example, witnessing death of American servicemen killed when a bomb hit their truck (combat) and the rape/mutilation death of a Vietnamese girl (non-combat)), the record reflects that the RO did not have the benefit of review of his service personnel records which, in light of the Court's precedent holdings cited above, makes it 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 addition, in Moreau, the Court stated that credible supporting evidence of a stressor may be obtained from service records or "other sources." Id. at 395. With respect to the other disorders for which service connection is claimed, review of the file shows that the appellant has not been specifically examined for compensation purposes, and hence, the Board finds that VA's duty-to-assist obligation under newly amended law affords him the right to be scheduled for VA compensation examinations, to include a determination as to whether he currently has disabilities resulting from the disorders claimed as service connected. See generally 38 C.F.R. § 3.103 (2000). Finally, the Board notes that additional medical records may be pertinent to the proper adjudication of the appellant's claim. In a statement dated in August 1998, the appellant indicated that he had claim pending with the Social Security Administration (SSA). In light of the fact that additional development is needed in this appeal, the RO should obtain all records that SSA has on the appellant, and 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. The requisition and consideration of all available medical records that might be relevant to an issue on appeal is necessary for the adjudication of the case. Decisions of the Board must be based on all of the evidence that is known to be available. 38 U.S.C.A. §§ 5103(a), 7104(a) (West 1991). Accordingly, this case is REMANDED to the RO for the following development: 1. The RO should contact the SSA for the purpose of obtaining any records from that agency which pertain to a claim filed for disability benefits by the appellant. The RO should obtain copies of award letters/notices, administrative/appellate decisions, hearing transcripts, if applicable, and all medical records relied upon concerning any 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 records which are ultimately unsuccessful should be documented in the claims folder. The RO shall inform the veteran if the VA is unable to secure any of the relevant records sought. 2. 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 for his PTSD, feet, right knee, upper back, right arm, thigh rash and ulcer, which have not already been associated with the record. All VA records identified should be obtained pursuant to established procedures. With regard to the private records, after securing appropriate releases from the appellant, attempts to secure copies of records pertaining to any indicated private physicians 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. The RO shall inform the veteran if the VA is unable to secure any of the relevant records sought. 3. In addition, 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 his war-time tour of duty in Vietnam, both combat and non-combat related. 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. 4. Further, in connection with the development of the PTSD claim, the RO should contact the National Personnel Records Center (NPRC) and request complete, legible copies of all personnel records which pertain to the appellant's service in the Marine Corps from September 1965 to September 1969. 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. All records received in response to the above inquiries should be associated with the claims folder. The RO shall inform the veteran if the VA is unable to secure any of the relevant records sought. 5. The RO also should request verification of the appellant's reported stressors with the U. S. Armed Services Center for Research of Unit Records (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 law 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 examinations for the purpose of addressing the nature and etiology of the other 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 in connection with 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 feet (claimed a jungle rot residuals), right knee, upper back, right ulnar nerve, skin (claimed as rash) and stomach (claimed as ulcer), 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 September 1965 and September 1969. As regards any right ulnar nerve disorder found, the physician should also address whether it is at least as likely as not that such a disorder is related to any diagnosed upper back disorder. 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(s), 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 these issues must be on a de novo basis as the well-grounded claim requirement is no longer part of the statutory scheme governing veterans benefits. Further, the readjudication of the PTSD claim must be in accord with the revised version of 38 C.F.R. § 3.304(f), as amended effective from March 1997. 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 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 or by the Court 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. M. C. GRAHAM Acting Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board is appealable to the Court. 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).