Citation Nr: 0115217 Decision Date: 06/01/01 Archive Date: 06/13/01 DOCKET NO. 98-06 561A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. Pomeranz, Associate Counsel INTRODUCTION The appellant served on active duty from August 1974 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 1997 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Detroit, Michigan. The Board notes that in the appellant's substantive appeal (VA Form 9), dated in May 1998, the appellant requested a hearing at the RO before a local hearing officer. The appellant also requested a hearing at a local VA office before a member of the Board. A letter from the RO to the appellant, dated in September 1998, shows that at that time, the RO had scheduled the appellant for a hearing before a local hearing officer in October 1998. A notation on the letter reflects that the appellant failed to show. In addition, a letter from the RO to the appellant, dated in February 2001, shows that at that time, the RO had scheduled the appellant for a hearing before the Traveling Section of the Board in March 2001. A notation on the letter reflects that the appellant failed to show. REMAND There has been a significant change in the law during the pendency of this appeal. 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 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Therefore, for these reasons, a remand is required. In an effort to assist the RO, the Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this case. That notwithstanding, the VA has an obligation under Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-97 (2000) (to be codified as amended at 38 U.S.C. § 5103) to advise the appellant of the evidence necessary to complete her application for VA benefits based on service connection for PTSD. In this case, the appellant is hereby notified that preliminary review of the case indicates that the "evidence necessary to complete her application" for service connection for PTSD under 38 C.F.R. § 3.304(f) includes the following: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), (2) a link, established by medical evidence, between current symptoms and an in-service stressor, and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2000). In the instant case, the appellant contends that her currently diagnosed PTSD is mostly due to her experiences in Guam. In this regard, the Board notes that although in the appellant's December 1997 VA PTSD evaluation, she was diagnosed with atypical depression, with anxiety, and the examiner noted that there was nothing to suggest that she was currently suffering from PTSD, in the appellant's February 1997 VA "PCT" evaluation, which was conducted by J.H. Casada, M.D., Ph.D., PTSD Fellow, and I. Liberzon, M.D., PCT Chief, she was diagnosed with PTSD. In January 1997, the appellant submitted a PTSD Questionnaire. At that time, she stated that while she was in the military, she served in Guam as a dental technician. The appellant indicated that on one occasion, a plane occupied by "Seabees" was leaving the Guam Naval Air Station when it crashed. She reported that as a part of the dental team, she had to help identify the "burnt bodies" by "charting" their teeth. According to the appellant, the smell of burnt human flesh was overwhelming. The appellant revealed that at present, she had nightmares about the experience. In the appellant's January 1997 PTSD Questionnaire, she stated that in the summer of 1976, she was working at the Naval Hospital in Guam when a dead sailor was found with his "head bashed in beyond recognition." The appellant indicated that at that time, she was the only dental technician in the dental department and she was asked to assist the mortician in identifying the body by "charting" his teeth. Subsequently, the appellant noted that she had a recurring nightmare of the dead sailor's body coming alive while her hands were in his mouth and he would bite them off. According to the appellant, she had tried to further her career in the dental field as a civilian, but had been unsuccessful due to that fear. In the PTSD questionnaire, the appellant also stated that close to the dental tent were Vietnamese refugee camps. She indicated that the refugees would try to get into the tent and grab at the technicians so that they would treat their "dental pains." The appellant reported that occasionally, she had nightmares about the refugees fighting to get into the tent. The appellant's DD Form 214, Report of Separation from the Armed Forces of the United States, shows that she served in the United States Navy from August 1974 to May 1978. The form also reflects that the appellant's Military Occupational Specialty (MOS) was as a dental technician. In addition, her personnel records show that she was stationed in Guam from February 1975 until her discharge in May 1978. A correspondence from the RO to the U.S. Armed Services Center for Research of Unit Records (USASCRUR) (formerly the U.S. Army & Joint Service Environmental Support Group (ESG), dated in March 1999, shows that at that time, the RO requested that the USASCRUR verify the appellant's stressors. At that time, the RO submitted an attached statement from the appellant regarding her stressors. The Board notes that it is unclear from the evidence of record as to whether the attached statement consisted of a copy of the appellant's January 1997 PTSD questionnaire or a separate statement from her which apparently is not of record. In a correspondence from the USASCRUR to the RO, dated in January 2000, the USASCRUR stated that they did not provide general historical documentation or copies of records for large periods of time without a specific incident. In the instant case, the Board observes that it is unclear from the evidence of record as to which stressors the RO provided the USASCRUR for verification and whether they specifically requested verification of the alleged "Seabees" incident. In addition, the information of record does not reflect that an attempt has been made by the RO to obtain stressor verification through the Department of the Navy. The provisions of the VA ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL M21-1) pertaining to the evaluation of PTSD claims provide that, "where records available to the rating board do not provide objective or supportive evidence of the alleged inservice traumatic stressor, it is necessary to develop this evidence." Manual M21-1, Part VI, 7.46(f)(2) (emphasis added). Since the development outlined in the manual includes providing stressor information to the proper administration in an attempt to verify the claimed stressor, this procedure is deemed mandatory. Additionally, to conform to the ruling of the Court, the RO must allow the appellant to supplement her statement and reevaluate it if the USASCRUR or the Department of the Navy is able to obtain some, but not all, of the stressor information submitted. See Zarycki v. Brown, 6 Vet. App. 91, 99-100 (1993). Such development is necessary before the Board can proceed with its appellate review of the claim. Cohen v. Brown, 10 Vet. App. 128 (1997). To ensure that the VA has met its duty to assist the appellant in developing the facts pertinent to her claim, and to ensure full compliance with due process, the Board determines that it is necessary to return this matter to the RO for further development of the record. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 2. The RO should, in accordance with Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000)(to be codified at 38 U.S.C. § 5103A (c)), request that the appellant identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated her at any time including following service, for PTSD. With any necessary authorization from the appellant, the RO should attempt to obtain copies of pertinent treatment records identified by the appellant in response to this request, which have not been previously secured. In addition, the RO should also inform the appellant of any records it has been unsuccessful in obtaining as provided under Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000)(to be codified at 38 U.S.C. § 5103A (b)(2)). 3. The RO should further request from the appellant, through her representative, a comprehensive statement containing as much detail as possible regarding the stressors to which she alleges she was exposed in service. The appellant should be asked to provide specific details of the claimed stressful events during service, such as dates, locations, detailed descriptions of events, units involved, number and names of casualties, and identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment or any other identifying detail. The appellant is advised that this information is vitally necessary to obtain supportive evidence of the stressful events and that she must be as specific as possible because without such details, an adequate search for verifying information can not be conducted. 4. Regardless of the response from the appellant, the RO should review the claims file and compile a list of the appellant's alleged stressors in as much detail as possible, to specifically include the "Seebees" incident. The RO should then verify the occurrence of the claimed stressors through official channels, including the USASCRUR and the Department of the Navy. Any information obtained should be associated with the claims file. If the search efforts produce negative results, documentation from that facility to that effect should be placed in the claims file. 5. If, and only if, the RO determines that the record establishes the existence of a stressor or stressors, the appellant should be afforded an examination by a psychiatrist to determine the presence of PTSD. The RO must specify for the examiner the stressor or stressors that the RO determined are established by the record, and the examiner is to be instructed that only those events can be considered for the purpose of determining whether the appellant was exposed to a stressor in service. The examination report should include a detailed account of all pathology found to be present. All necessary special studies or tests are to be accomplished. In addition, the examiner should address the following: (a) whether the stressor(s) determined by the RO to actually have occurred was/were sufficient to produce PTSD, (b) whether the appellant meets the diagnostic criteria for PTSD under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, and (c) whether there is a link between current symptoms and the stressor or stressors specified by the RO as established by the record. The examination report should include a complete rationale for all opinions expressed. The claims folder must be made available to the examiner prior to the examination. 6. The RO should then review the claims file to ensure that all of the foregoing requested development has been completed. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should re- adjudicate the issue of entitlement to service connection for PTSD. If the benefit sought on appeal remains denied, the appellant and the appellant's representative, if any, should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The purpose of this remand is to obtain additional development. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified; however, the appellant is advised that failure to cooperate by not reporting for any scheduled examinations may result in the denial of the claim. 38 C.F.R. § 3.655 (2000). 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. ROBERT E. SULLIVAN Member, 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).