Citation Nr: 0203510 Decision Date: 04/17/02 Archive Date: 04/26/02 DOCKET NO. 00-16 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a lumbar-thoracic spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. S. Hughes, Counsel INTRODUCTION The veteran served on active duty from May 1980 to May 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board notes that the veteran's appeal to the Board consisted of entitlement to service connection for bipolar disorder (claimed as depression), PTSD, fibrocystic breast disease, temporomandibular joint dysfunction, refractive error of eyes (claimed as vision disorder), cervical spine strain, left wrist contusion, sinusitis, upper respiratory infections, heat exposure, bladder disorder, kidney disorder, elective hysterectomy, a left ankle sprain, tinnitus, and low back disability. However, prior to certification of her claims to the Board, in a June 2001 statement, the veteran's accredited representative stated that she "wishes to withdraw all issues listed under appeal except service connection for lumbar-thoracic spine disorder and mental health disorder." Accordingly, the Board has jurisdiction over the issues of entitlement to service connection for a lumbar-thoracic spine disorder and an acquired psychiatric disorder, to include PTSD. 38 C.F.R. § 20.204 (2000) (a claimant can withdraw a substantive appeal at anytime prior to a Board decision on the claim). The remaining issues listed on appeal are considered withdrawn and will not be addressed herein. REMAND Initially, the Board notes 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), ), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, 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. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096 (2000); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA regulations have also been revised as a result of these changes. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The VCAA provides that upon receipt of a complete or substantially complete application VA is required to notify the claimant and the claimant's representative, if any, of any information necessary to substantiate the claim and to indicate which information should be provided by the claimant and which information VA will attempt to obtain. See 38 C.F.R § 3.159(b)(1). In this case, the Board notes the veteran is seeking entitlement to service connection for PTSD secondary to personal trauma. In this regard, the Court has held that VA Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14c (Feb. 20, 1996), provides substantive rules in which VA has undertaken a special obligation to assist a claimant in producing corroborating evidence of an in-service stressor in personal-assault cases. In Patton v. West, 12 Vet. App. 272 (1999), the Court held that because of the unique problems with documenting personal assault claims, the RO is responsible for assisting the claimant in gathering, from sources in addition to the in-service records, evidence corroborating an in-service stressor. The Court noted that of particular pertinence to the case were the provisions of the manual which stated that "behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor" (MANUAL M21-1, Part III, P 5.14c(8)); and that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes" and that "evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician" (MANUAL M21-1, Part III, P 5.14c(9)). The Court ordered that on remand, all evidentiary development called for by the manual is to be undertaken to include interpretation by a clinician of behavior changes and evidence pertaining thereto. In this regard, the Board notes that the veteran was treated for mental health complaints during service in January and February 1984. An addendum to the veteran's April 2001 VA PTSD examination report notes that "[h]er response profile pattern [to PAI (Personality Assessment Inventory)] was highly congruent with that for the PTSD diagnosis." Additionally, this VA examination report includes diagnoses of major depressive disorder, dysthymic disorder, and anxiety disorder. Similarly, private and VA psychiatric treatment records include diagnoses of bipolar disorder and PTSD. However, this evidence does not include an opinion as to the etiology of the veteran's psychiatric disorders. Therefore, the Board finds additional development is required prior to appellate review. Additionally, the veteran complained of thoracic and lumbar back pain during service. Current VA examination report provides impression of lumbar pain without permanent disability and thoracic pain without permanent disability. However, there is no diagnosis regarding the back pain or opinion with respect to etiology of back pathology, if any. Therefore, the Board finds a medical opinion is required for an adequate determination of the issue of service connection for lumbar-thoracic spine disorder. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The veteran should be requested to identify all sources of treatment as to the issues on appeal and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. In this regard, the veteran should also be requested to identify any sources of psychiatric treatment received prior to service. Copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. The RO should conduct additional development as required by VA Manuel M21- 1, Part III, 5.14c. The RO should give the veteran an appropriate time period within which to respond to any request for additional information. All pertinent evidence received should be associated with the claims file. 3. Following completion of the above development, the RO must make a specific determination, based on the complete record, 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. In rendering this determination, the RO should consider all applicable laws and regulations. The RO must specify which, if any, of the claimed stressor or stressors are verified. In reaching this determination, the RO should address any credibility questions raised by the record. See Patton, supra. 4. Thereafter, the veteran should be afforded a VA examination by a board certified psychiatrist for opinions as to the nature and etiology of any present psychiatric disorders. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to conduction and completion of the examination. The examiner should be informed of the RO's stressor verification determination for the purpose of providing an opinion as to whether any event during active service has resulted in a current psychiatric disability. In addition, the examiner should determine if a psychiatric disability clearly and unmistakably preexisted the period of active service, whether it increased in severity in service and if it did increase in severity in service did it increase beyond natural progress. The examiner should indicate whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. The examination should include all appropriate tests and evaluations, including psychological testing with PTSD subscales. The examiner should utilize the Fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), in arriving at diagnoses and enumerating the specific diagnostic criteria satisfied and the specific findings meeting the criteria for any disorder found. If PTSD is diagnosed, the stressor supporting the diagnosis must be identified, including the evidence documenting the stressor. If the examiner finds that PTSD is related to stressors other than those claimed to have occurred in service, it should be so noted and explained. If PTSD is diagnosed, the examiner should specify what symptoms are related to PTSD as opposed to any other psychiatric disorders. A complete rationale for all opinions should be provided. 5. The RO should also schedule the veteran for an examination by an orthopedist for an opinion as to etiology of any pathology of the back. The claims folder and a copy of this remand must be made available to and reviewed by the examiner. Review of the service medical records is vital. The examiner is requested to render a medical opinion as to whether any current back pathology is at least as likely as not related to the veteran's in service low back sprain/strain. The examiner should perform any examinations, tests, or studies deemed necessary for an accurate assessment. A complete rationale for the opinions given should be provided. 6. The RO must review the claims file and ensure that all notification and development action required by the VCAA, 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 (codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107) and 66 Fed. Reg. 45,620- 45,632 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159) are fully complied with and satisfied. 7. After the action requested above has been completed to the extent possible, as well as any other action deemed necessary, the RO should review the record and re-adjudicate the issues on appeal. If any benefit sought, for which a timely notice of disagreement was filed, is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until notified by the RO; however, the veteran is advised that failure to cooperate by reporting for examination may adversely affect her claims. 38 C.F.R. § 3.655 (2001). 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. 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. A. BRYANT 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) (2001).