Citation Nr: 0115712 Decision Date: 06/07/01 Archive Date: 06/13/01 DOCKET NO. 00-14 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bone loss, as secondary to service-connected Post-Traumatic Stress Disorder (PTSD) and anorexia. 2. Whether new and material evidence has been submitted sufficient to reopen the previously denied claim for entitlement to service connection for a bilateral breast condition. 3. Entitlement to a compensable evaluation for grinding and clenching of teeth. 4. Entitlement to an increased evaluation for PTSD and anorexia, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.J. Bakke, Associate Counsel INTRODUCTION The veteran served on active duty from January 1978 to July 1979. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision of the New Orleans, Louisiana Department of Veterans Affairs (VA) Regional Office (RO). The issues of entitlement to service connection for bone loss, as secondary to service-connected PTSD and anorexia, and of entitlement to higher disability evaluations for PTSD and anorexia, and for grinding and clenching of teeth are the subjects of a remand immediately following this decision. FINDINGS OF FACT 1. The RO denied the veteran's claim for entitlement to service connection for a bilateral breast condition in a December 1997 rating decision, of which notice was given by a letter dated December 23, 1997. The veteran did not appeal this decision. 2. The evidence associated with the claims file since the December 1997 rating decision bears directly and substantially on the specific matter under consideration and by itself and in connection with the evidence previously assembled is so significant that it must be considered to fairly decide the merits of this claim. CONCLUSIONS OF LAW 1. The RO's December 1997 rating decision denying service connection for a bilateral breast condition is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 2000); the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. § 20.302 (2000). 2. Evidence received into the record subsequent to the RO's December 1997 rating decision is new and material; thus, the requirements to reopen the claim for service connection for a bilateral breast condition have been met. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 2000); the VCAA (2000); 38 C.F.R. §§ 3.156(a), 20.302 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, the RO denied service connection for a bilateral breast condition in a December 1997 rating decision on the basis that the evidence then of record did not demonstrate that the veteran was diagnosed with a bilateral breast condition that was related to active service. While service medical records showed complaints of bilateral breast pain, a December 1997 VA examination could find no mass, discharge, or adenopathy. The examiner did not diagnosis any current bilateral breast disability. Thus, the RO determined that no permanent residual or chronic disability was established. The veteran was notified of this decision by a letter dated December 23, 1997. She did not appeal this decision. She continues to contend that her current bilateral breast condition is the result of her active service. Prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that the VA must determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 1991); and immediately upon reopening the claim, the VA must determine whether the VA's duty to assist under has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Under § 3.156(a) new and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. The Court has held that the Board is under a legal duty in such a case to determine if there was new and material evidence to reopen the claim, regardless of the RO's action. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Pertinent evidence associated with the claims file since the RO's December 1997 decision includes: (1) the veteran's statements; and (2) VA and private medical treatment records noting diagnoses of probable fibrocystic disease, possible infectious etiology from open biopsy or axillary folliculitis; observations of a calcified lump; and notations that a biopsy was performed. In this case, VA outpatient records dated from October 1999 to February 2000 are new, as they were not previously of record. Moreover, these records include evidence that the veteran has been diagnosed with probable fibrocystic disease and possible infectious etiology from open biopsy or axillary folliculitis. These records also contain observations of a calcified lump by mammogram and ultrasound, and indicate that she has undergone biopsy. These treatment records were not considered by the RO when it made its rating decision in December 1997. Moreover, these records bear directly and substantially upon the specific matter under consideration; thus, they are so significant that they must be considered to decide fairly the merits of this claim. These records therefore constitute new and material evidence under 38 C.F.R. § 3.156(a), and the Board is required to reopen the previously denied claim of entitlement to service connection for a bilateral breast condition. However, upon further review, the Board finds that further information is necessary under the duty to assist provisions of the VCAA. Specifically, while the evidence demonstrates that the veteran is diagnosed with a bilateral breast disability, the exact nature of that disability is not clear. The claims file does not show that the veteran has been offered a VA examination to determine the nature, extent, and etiology of her bilateral breast disability. Finally, records of the biopsy are not present in the claims file before the Board. Thus, following the reopening, the issue is remanded to the RO for development and readjudication on the merits. ORDER The claim for service connection for a bilateral breast disability is reopened. REMAND As determined above, the Board has reopened the previously denied claim for entitlement to service connection for a bilateral breast condition. In addition, the veteran seeks service connection for bone loss, as secondary to the service connected PTSD and anorexia. She further seeks an increased evaluation for her PTSD and anorexia, and an initial compensable evaluation for grinding and clenching of teeth. The Board has reviewed the record and finds that additional development is required prior to the completion of appellate action. First, the evidence of record reflects that the veteran has received treatment from several VA Medical Centers (MCs), as well as private health care providers; however, the RO has not attempted to obtain all the records of which it had notice. For example, the RO obtained records from the VAMC in Jackson, Mississippi, and the VAMC in New Orleans, Louisiana. But it did not request records from the VAMC in Baton Rouge, Louisiana. In addition, the RO obtained only those records dated from December 1998 to December 1999 from VAMC Jackson, Mississippi, and from October 1999 to February 2000 from New Orleans, Louisiana. Moreover, a June 2000 private psychiatric evaluation reflects both that the veteran was referred by the Veterans Center and also that she was placed in a weekly treatment program. Yet, no effort was made to obtain these records. Similarly, the RO requested release of private records of treatment the veteran was accorded for her bilateral breast condition. A signed "Authorization and Consent to Release Information," VA Form 21-4142 is of record, received by the RO in February 2000. Yet, the claims file does not reflect that the RO requested these records. Finally, the record presents evidence of further private treatment by various health care providers for her conditions. Yet, again, the claims file does not demonstrate that the RO attempted to obtain these records. Second, concerning the veteran's claimed bilateral breast condition and service-connected PTSD and anorexia, the medical evidence presents confusing and contradictory or incomplete disability pictures. Specifically, the most recent medical evidence of record presents an undetermined diagnosis of a bilateral breast condition. VA treatment records dated in October 1999 reflect a diagnosis of probable fibrocystic disease. In December 1999 she reported a swelling that burst. Repeat mammogram and ultrasound revealed a calcified lymph node which the examiner opined was benign. A February 2000 entry indicates that she underwent a biopsy. Findings were benign, but the examiner assessed a likely infectious etiology from open biopsy or axillary folliculitis. With regard to the service-connected PTSD and anorexia, a January 2000 VA examination report reflects doubt with the diagnosis of PTSD. Rather, the examiner diagnosed PTSD by previous diagnosis with possible mood disorder secondary to thyroid disorder, adverse medication effects not otherwise specified, and personality disorder not otherwise specified with a Global Assessment of Function (GAF) measured at 65. The examiner recommended additional evaluation to clarify the effects of prescribed medication on her central nervous system. In contrast, a private, June 2000, psychiatric evaluation reflects a clear assessment of PTSD with recurrent, severe major depression, rule out manic depressive disorder, with a GAF of 50. The private examiner further opined that the assigned GAF was supported only by the veteran's involvement in work and school, which appears somewhat tenuous as described in the report, and indicated that the veteran required weekly sessions for one year. VA outpatient records dated from December 1998 to December 1999 corroborate these findings. These documents reflect that, although the veteran presented as alert, well-oriented and appropriately groomed with logical and goal-directed speech, she was depressed, anxious and had a flattened affect. She was further observed to exhibit poor coping mechanisms, suicidal ideation, depression, increased stress and anxiety, and a tendency to overwhelm herself with responsibilities so that she could not think of anything else. Echoing the June 2000 private report, these records reflect that the veteran needed to be seen more for cognitive restructuring. And, underscoring the VA examiner's recommendation for further testing in January 2000, these records also note difficulties with the veteran's prescribed medications. Finally, the Board notes that during the pendency of this appeal the VCAA, among other things, redefined the obligations of the Department of Veterans Affairs (VA) with respect to the duty to assist. Due to this change in the law, a remand is also required in this case, in part, for compliance with the notice and duty to assist provisions contained in the new law. The veteran is advised that while the case is on remand status, she is free to submit additional evidence and argument. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). In addition, in order to make certain that all records are on file, while the case is undergoing other development, a determination should be made as to whether there are any additional records that should be obtained. Accordingly, this case is REMANDED for the following: 1. The RO should request that the veteran furnish the names and addresses of all private and VA health care providers who have treated her for bone loss, a bilateral breast condition, and her service-connected PTSD and anorexia, and grinding and clenching of teeth. The RO should, in addition, procure duly executed authorization for the release of private medical records. 2. The RO should request that all identified health care providers furnish eligible copies of all medical records of treatment accorded the veteran for her bilateral breast condition and bone loss, and her service-connected PTSD and anorexia, and grinding and clenching of teeth. The RO should ensure that it has all obtainable treatment records of which it has knowledge. In particular, the RO should obtain any and all records of treatment accorded the veteran for her bilateral breast condition and bone loss, and her service-connected PTSD and anorexia, and grinding and clenching of teeth from VAMCs in Jackson, Mississippi, New Orleans and Baton Rouge, Louisiana; from Women's Hospital in Baton Rouge, Louisiana; the Veterans Center; Mississippi Neuropsychiatric Clinic, Jackson Mental Health Center, East River Medical Clinic, St. Dominic-Jackson Memorial Hospital, and Lakeland Surgical Clinic in Jackson, Mississippi; Riverland Medical Center in Ferriday, Louisiana; and Counseling Services, Inc. of Natchitoches, Louisiana; and by Kurt A. Buechler, M.D., Robert Lundy, M.D., Cynthia Allen, M.D., and Lori J. Fulton, M.D. of Jackson Mississippi; H. Vann Crane, M.D., P.A. (spelling unverified) of Natchez, Mississippi; and Kathleen Laske, M.S.W., L.C.S.W. of Natchitoches, Louisiana. 3. Where attempts to obtain records are unsuccessful, the RO should document these attempts and make such documentation part of the claims file. The veteran and her representative should be informed of such negative results. 38 C.F.R. § 3.159 (2000). 4. The veteran should be scheduled for examinations by appropriate specialists to determine the nature and etiology of any breast condition, bone loss, and grinding and clenching of teeth, as well as the severity of her service-connected PTSD and anorexia. All indicated tests and studies should be accomplished. The claims folder should be made available to the examiners for review in conjunction with the examinations. The examiners should record pertinent medical complaints, symptoms, and clinical findings. The appropriate examiners should express opinions as to the following questions after reviewing the records and examining the veteran: (a) The physician who examines the veteran for breast pathology should offer an opinion as to the nature and etiology of any breast pathology found on examination and an opinion as to whether any currently diagnosed breast condition is the result of her active service? If the examiner cannot so determine, it should be so stated. (b) The physician who examines the veteran for bone loss should offer an opinion as to the nature and etiology of any pathology resulting in bone loss and an opinion as to whether any currently diagnosed bone loss disability is the result of her active service or a service- connected disability? In making this opinion, the examiner is directed to the opinion in the January 2000 VA examination report which notes, in pertinent part: "Etiology of bone loss appears to be chronic, generalized periodontal disease caused by local irritating factors, not stress." (c) The physician who examines the veteran for PTSD and anorexia should offer an opinion as to the effect of the PTSD and anorexia on the veteran's employability. 5. The RO must then review the claims file and ensure that all notification and development action required by the VCAA 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. 6. Thereafter, the RO should readjudicate the veteran's claims. If any benefit sought on appeal remains denied, the veteran and her representative should be provided with a supplemental statement of the case. The supplemental statement of the case 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. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran is reminded that it is her responsibility to report for schedule examination(s) and to cooperate in the development of her case, and that the consequences of failing to report for VA examination(s) without good cause may include denial of her claim. 38 C.F.R. § 3.158, 3.655 (2000). 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. Gary L. Gick 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).