Citation Nr: 0123499 Decision Date: 09/27/01 Archive Date: 10/02/01 DOCKET NO. 99-19 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD). 2. Entitlement to service connection for hair loss claimed as due to undiagnosed illness. 3. Entitlement to service connection for an intestinal disorder claimed as due to undiagnosed illness. 4. Entitlement to service connection for a skin disorder claimed as due to undiagnosed illness. 5. Entitlement to service connection for a sinus disorder/bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant was a member of the Army National Guard of Puerto Rico, and the record reflects that he was ordered to active duty in support of Operation Desert Shield/Desert Storm from November 1990 to May 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions issued by the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the appellant appeared at a hearing held at the RO before the undersigned Member of the Board on January 26, 2001. The transcript of the hearing, which is of record, indicates that the appellant expressed his desire to pursue the appeal only as to the issues listed on the title page of this remand. See Transcript at page 2. Accordingly, all other appealed issues not listed on the title page that were addressed in the April 1999 and June 1999 statements of the case as well as the June 1999 supplemental statement of the case furnished to him and his representative are considered to have been withdrawn. REMAND There has been a significant change in the law since the RO adjudicated this case by statement/supplemental statements of the case in June 1999. On November 9, 2000, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (hereinafter the VCAA) was enacted into law. Implementing regulations were published by VA in August 2001, and made effective from date of the law's enactment. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159 and 3.326(a)). The VCAA eliminated the concept of a well-grounded claim and redefined VA's obligations with respect to the duty to notify and the duty to assist. 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. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (where law or regulation changes after a claim has been filed, but before administrative or judicial appeal process has concluded, the version most favorable to claimant should apply). 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. The Board notes that additional medical records, not currently associated with the record on appeal, may be pertinent to the proper adjudication of the appellant's claims. Specifically, at his hearing before the undersigned Board Member in January 2001, the appellant testified that he had been recently seen at the San Juan VA Medical Center (VAMC) and that he had been treated in the past by a number of private physicians, including Drs. Pratdesaba, Cruz, Hozino or Jusino and Santana (if he was actually treated by a Dr. Santana), as well as any private medical facilities, to include Dr. Mattei Hospital. Some of these private medical records were requested pursuant to the appellant's authorization, but it is unclear whether additional records are available. Moreover, based on his recent testimony, it is unclear whether he has properly identified the names and places of private medical treatment; for example, he referred to a Dr. Santana at his hearing in January 2001, but the record shows that he identified a "Laboratori Clinico Santana" as a place of treatment. These matters should be clarified by the RO on remand and any available records obtained in compliance with the VCAA and implementing regulations published in August 2001. Upon completion of the above-cited development, the RO should schedule the appellant for medical examinations to address the nature and etiology of the disorders claimed as service connected based on a complete review of the evidence in the claims file. In the Board's view, the appellate record does not at this time contain sufficient medical evidence to decide these claims. 38 U.S.C.A. § 5103A(d)(1) and (2), as amended by VCAA. If the appellant fails, without good cause, to report for an examination, his claim should be adjudicated based on the evidence of record. 38 C.F.R. § 3.655(a), (b). Further, the Board notes that the regulation governing the award of service connection for PTSD, 38 C.F.R. § 3.304(f), was amended in June 1999. See 64 Fed. Reg. 32807 (June 18, 1999). The new version of the regulation is effective from March 7, 1997, and hence, as this claim remains pending on appeal, the revised version must be considered. Of significance here is the change to section 3.304(f) which eliminated the requirement for a "clear diagnosis" of PTSD and replaced it with the criteria that an award of service connection depended on whether there was 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. As 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) 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). In light of the Court's precedent holdings cited above, the Board finds 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 might 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 San Juan- VAMC and the Mayaguez clinic and request complete, legible copies of all medical reports pertaining to treatment provided to the appellant. Efforts to obtain these records should be documented and any evidence received in response to this request should be associated with the claims folder. 2. The RO should contact the appellant and request that he provide a list with the names, addresses, and approximate dates of treatment for all non-VA health care providers who have treated him since service for the disorders at issue on appeal. The RO should request his authorization to release any indicated private medical records, in particular, as noted in the claims folder, any medical records cited above, namely from Drs. Pratdesaba, Cruz, Hozino or Jusino, and Santana (identified at the hearing), as well as any private medical facilities, to include Dr. Mattei or "Matos" Hospital. Upon receipt of his signed authorization(s) for such records, the RO should attempt to obtain copies of treatment records identified by the appellant. All treatment records obtained as a result of this inquiry should be associated with the claims folder. 3. In addition, the RO should contact the appellant and inform him that may submit any corroborating evidence he may have pertaining to the alleged stressors he claims to have experienced during service, both combat and non-combat related. The appellant should be advised that a meaningful research of his claimed stressors will require him to provide the "who, what, where and when" of each stressor. Further, the RO should inform the appellant that he could 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 any identified 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. Thereafter, the RO should send an inquiry to the NPRC in St. Louis, Missouri, for the purpose of requesting copies of any additional service records (administrative and medical) that may be available pertaining to the appellant's active service in the Army between November 1990 and May 1991, and specifically, any and all records associated with his Official Military Personnel File (OMPF), to include any available certificates/citations corresponding to service awards. 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. 5. With respect to the above, all attempts to obtain records which are ultimately not obtained should be documented, and in accordance with the VCAA, § 5103A(b)(2), and the newly revised regulations, 38 C.F.R. § 3.159(a)-(f), 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, 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 pertinent sources would be futile. 6. The RO also should subsequently request verification of the appellant's reported stressors with the U. S. Armed Services Center for Research of Unit Records (CRUR). The CRUR 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. 7. 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. 8. 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. 9. In addition, the RO should schedule the appellant for an appropriate VA examination for the purpose of addressing the nature and etiology of the claimed Persian Gulf War undiagnosed disabilities for which service connection is being sought, as listed above on the title page. The RO should forward the entire claims file along with a copy of 38 C.F.R. § 3.317 (2000) to the examining physician, in order to ascertain whether the appellant's symptoms (hair loss, intestinal distress, and itching skin) are part of separate disease entities, or whether there exist medical relationship between the claimed symptoms and the appellant's service in the Persian Gulf. After the examiner has reviewed the claims file and pertinent regulations, the examiner should provide a specific opinion as to whether the appellant has objective indications of chronic disability resulting from an undiagnosed illness related to his Persian Gulf War service or whether he has separate and precise illnesses unrelated to his military service in the Persian Gulf. The physician should further indicate whether it is at least as likely as not that the appellant's claimed hair loss, intestinal disorder and skin disorder are etiologically related to any complaints, treatment or diagnosis reflected in his service medical records. The examiner should include a discussion of the pertinent medical history, including the approximate date of onset of each particular disorder. The examiner should also discuss any other affirmative evidence that would indicate that the appellant is not suffering from an undiagnosed illness. If additional examinations are necessary to properly respond to the specific opinions requested, such examinations should be promptly scheduled and conducted, and the RO must ensure that any reports generated therefrom are associated with the claims folder. All medical opinions must be based on a thorough and careful review of all the evidence contained in the claims folder. 10. The appellant must be given adequate notice of any requested examinations, and he is hereby advised that failure to cooperate or to report for any scheduled examination without good cause could result in an adverse decision. If the appellant fails to report for an examination, this fact should be documented in the claims folder and his claims should be adjudicated with consideration of 38 C.F.R. § 3.665. A copy of all notifications must be associated with the claims folder. 11. The RO must review the claims file and ensure that all notification and development actions applicable to the appellant's claims and required by the VCAA are completed and that the report of the requested examinations are in full compliance with the above instructions. Any report that is not in compliance with the instructions should be returned to the examiner for correction. 12. Upon completion of the above, the RO must readjudicate the appellant's claims in appellate status before the Board, as listed on the title page. In this regard, the RO should address these claims on the merits with consideration given to all of the evidence of record and after ensuring that all duty-to- notify and duty-to-assist provisions have been fulfilled. The undiagnosed illness claims must be readjudicated with consideration of the criteria set forth under 38 C.F.R. § 3.317, and the claim of service connection for PTSD must be considered under the revised version of 38 C.F.R. § 3.304(f). Any issue that is found to be inextricably intertwined should be properly adjudicated. The RO should take into consideration with heighten mindfulness the benefit of the doubt rule. 38 U.S.C.A. §5107(b) (West Supp. 2001). If the evidence is not in equipoise, the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). If any benefits sought on appeal remain denied, the RO should provide the appellant and his representative an adequate supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on his claim for benefits as ordered by this REMAND, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. The RO should then allow the appellant an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. 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. 2001) (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 Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), 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).