Citation Nr: 0329893 Decision Date: 10/31/03 Archive Date: 11/05/03 DOCKET NO. 01-03 148 ) 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 depression, claimed secondary to service-connected cancer of the larynx. 3. Entitlement to service connection for neck spasms, claimed secondary to radiation therapy for service-connected cancer of the larynx. 4. Entitlement to service connection for dental condition, claimed secondary to radiation therapy for service-connected cancer of the larynx. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from March 1968 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a rating decision dated in April 2000 the RO, in pertinent part, denied service connection for PTSD, neck spasms and a dental condition. The veteran disagreed with those determinations and perfected his appeal as to those claims. In his substantive appeal, he argued that he had many stressors in Vietnam and stated that his neck spasms and claimed dental condition were secondary to radiation treatment for his service-connected cancer of the larynx. The veteran testified at an August 2001 RO hearing before a Decision Review Officer. At the August 2001 hearing, the veteran testified that he lost a tooth in service in a fight that ensued after another serviceman "bashed" him in the back of the head with a full C-ration unit. He said the tooth was rammed though his lip, requiring stitches, and that "the tooth was gone - removed one or two teeth at the time." By his hearing testimony the veteran expanded the dental claim to include dental trauma in service. Although the RO addressed dental trauma in service as well as radiation effects in its November 2002 supplemental statement of the case, it is not clear that the dental trauma claim is in appellate status. In this regard, the Board notes that the record includes a November 1978 dental rating sheet in which entitlement to VA outpatient dental treatment was denied. On that rating sheet, the rating board remarked there was no evidence of trauma to teeth from available dental records. The Board refers this matter to the RO, which should establish whether the veteran received notice of that determination and whether he was informed of his appellate rights at that time. The RO should make an initial determination as to the finality of the November 1978 determination and, if appropriate, inform the veteran of the requirements for reopening a previously denied claim and thereafter determine whether new and material evidence has been received to reopen the claim. REMAND The veteran filed his service connection claims in 1998, and the RO initially denied the claims as not well grounded in its April 2000 rating decision. 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, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified in pertinent part at 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002)). The new legislation eliminated the concept of a well-grounded claim and redefined the obligations of VA with respect to its duty to provide notice and assistance with respect to veterans' claims. There is an enhanced VA duty to notify a claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Further, VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 C.F.R. § 3.159 (2002). In March 2001, the RO sent the veteran a letter stating it would tell him what evidence was necessary to establish entitlement to the benefits he wanted and what information or evidence VA would get, including service medical records, and what information or evidence was needed from him. The RO proceeded to discuss what evidence must show to establish service connection and requested that the veteran identify or provide evidence in support of his claims. It also stated that VA would attempt to obtain medical records for which the veteran provided release authorization. The RO requested that the veteran send the information describing additional evidence or the evidence itself within 60 days of the date of the letter. The RO also stated that if it did not receive the information or evidence within that time, it would decide the claim based only on the evidence it had received and any VA examinations or medical opinions. Later in the letter the RO stated that if the information or evidence was received within one year from the date of the letter and it was decided that he was entitled to VA benefits, it might be possible to pay him from the date of receipt of his claim. In November 2002, the RO issued a supplemental statement of the case in which it addressed the veteran's claims on the merits. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02- 7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Federal Circuit drew a conclusion similar to the one reached in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The Federal Circuit found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. The record reflects that while the veteran was provided a 60-day response period, he was not properly notified of the time limit for the submission of additional evidence and information. Therefore, since this case is being remanded for additional development or to cure a procedural defect, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice. At the August 2001 hearing, the veteran testified that he has severe tooth problems associated with radiation treatment for his service-connected larynx cancer because when the radiation was ordered, he had some teeth that needed work, and they had to be pulled. He testified that he lost four molars and two front teeth in order to get them out of the field of radiation and that since that time he had had to have four or five root canals done on teeth that were in the radiation field. He testified that he was seeking the opportunity to get treatment for his dental problems. He testified that he had pain, change in his jawbone structure and change in his appearance as a result of the radiation. He testified that the last dentist who had done a root canal said, "things have sure changed in there." In a letter dated in September 2001, the RO requested that the veteran complete a form authorizing release of information from his private dentist, but there is no indication that the veteran responded to that request. As the case is being remanded for other reasons, the Board will request that the veteran be provided an additional opportunity to identify or provide evidence in support of his dental claim. In any event, the Board will request that the RO provide the veteran with an additional dental examination and opinion so that the examiner may formulate an opinion with consideration of the impression of C. Edgar Davila, D.D.S., MS, Maxillofacial Prosthodontist and Dental Oncologist, at the H. Lee Moffitt Cancer Center who evaluated the veteran in August 1994. At that time he stated that the veteran showed a high caries index, which he said would get worse after X-ray therapy. Dr. Davila's report was not of record at the time of the VA April 1999 dental examination ordered in conjunction with this claim. The Board notes that records from H. Lee Moffitt Cancer Center indicate that the veteran had radiation therapy of 7000 cGy over seven weeks starting in September 1994. In a follow-up note dated in January 1998, the radiologist noted that the veteran had several teeth in poor condition and stated that part of the veteran's dental condition might be secondary to the partial xerostomia secondary to radiation therapy. At the RO hearing, the veteran reported that neck spasms started approximately two months after he had radiation treatments for his service-connected larynx cancer. He contends that the neck spasms and stiffness of his neck, which cause him neck pain, are the effects of the radiation on the fibers in the neck and are residuals of the radiation. At the hearing, he testified that some days he had a lot of neck spasms and other days he had none. He said the only available treatment was from his chiropractor. Evidence currently of record includes Spiegel Chiropractic Clinic clinical records dated from December 1984 to January 1997 and from August 1997 to January 1998, which include objective findings of "myo spasms" and soreness in the cervical spine area in 1997 and 1998. As the veteran's hearing testimony indicates that he was also receiving treatment from a chiropractor at the time of the hearing, additional action should be taken to obtain complete chiropractic records for the veteran. The Board also notes that among documents received from the Social Security Administration is the first page of an April 1998 letter from Percival M. Tamayo, M.D., to Office of Disability Determinations. In the first paragraph of the letter Dr. Tamayo noted the veteran's history of radiation therapy for cancer of the larynx and stated that post-radiation problems that apparently had developed included dryness of the mouth with difficulty swallowing with occasional pain and cramping of the neck. As the remainder of the letter apparently includes a physical examination report including the neck, it could be pertinent to the veteran's claim and should be obtained. Further, an additional VA examination and medical opinion would facilitate the Board's decision on this claim. Relative to the claim for service connection for PTSD, the Board notes that in a May 1998 record, Michael A. Weitzner, M.D., Chief, of the Psychiatry Service at H. Lee Moffitt Cancer Center stated that neuropsychological testing showed some significant problems with short-term memory as well as areas of executive function. He said the veteran also continued to have fairly significant levels of depression and anxiety. Dr. Weitzner stated that he and a Dr. Booth Jones felt that these results were indicative of some post- traumatic related problems. He noted that the veteran was a Vietnam veteran and had some fairly significant traumatic experiences there and as a result of his contraction of cancer and treatment had been in a situation where he again was outside of his own control. In a clinical record dated in July 1998, Dr. Weitzner stated that through further information, as well as interpretation of neuropsychological testing conducted by Dr. Booth Jones, it seemed more apparent that the veteran's neurovegetative symptoms of depression and well as anxiety were brought on by his diagnosis with cancer. Dr. Weitzner also stated that it appeared that the veteran was more vulnerable to becoming depressed and anxious related to his diagnosis of a life-threatening illness due to his clear post-traumatic stress symptoms resulting from the Vietnam war. Neuropsychological test reports and a complete report of Dr. Jones' interpretation of the neuropsychological testing to which Dr. Weitzner referred are not in the claims file. As such records may be pertinent to the veteran's PTSD service connection claim, the RO should attempt to obtain them. The Board also notes that the veteran testified that he started going to VA for mental health care in 1998. The record does include a January 2001 VA outpatient note and an August 2001 VA mental health clinic note. The January 2001 note has an assessment including PTSD/depression while in August 2001, the VA psychiatrist stated the veteran was there for continued treatment of symptoms of mood disorder due to medical condition (post radiation) and PTSD, namely depression, irritability, anger, unprovoked anger, fatigue and periods of low activities of daily living. Complete VA treatment records, including mental health clinic records, are presumed to be of record and should be obtained. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered constructively in possession of VA adjudicators during consideration of a claim, regardless of whether those records are physically on file). The veteran states that one of his in-service PTSD stressors is having witnessed the death of a Sergeant Smith and two warrant officers, whose names he does not know. He reports that they died due to the explosion of a grenade in a training demonstration during orientation when he arrived in Vietnam. At the hearing, the veteran testified that Sergeant Smith was in the 198th Light Infantry Brigade. The veteran's service personnel records show he was assigned to the 23d AG Admin Co (Repl Det) as a student (Americal Combat Center) in May 1969 and thereafter was assigned to the 198th Infantry Brigade. In an August 2001 letter requesting assistance in stressor verification from the U.S. Armed Services Center for Research of Unit Records (USASCRUR), the RO mentioned that the veteran had stated that during new employee orientation in Vietnam a Sergeant Smith was killed with a grenade as an accident, which was the result of friendly fire and not Vietcong action. In its response, dated in May 2002, USASCRUR provided a U.S. Army Casualty Report documenting the death of a Sergeant Smith from non-hostile related injuries sustained during a grenade incident in April 1970, which was after the veteran's separation from service. In the letter the USASCRUR said that Morning Reports, DA Form 1, which could be ordered from the National Personnel Records Center (NPRC), could be used to verify daily personnel actions such as unit casualties or transfers. In a letter dated in July 2002, the RO refined its request to USASCRUR somewhat by stating that the event involving Sergeant Smith would have been around May 1969. The USACRUR responded in August 2002 by sending a copy of its May 2002 letter. There is no indication in the record that the RO has attempted to obtain morning reports from NPRC, which should be done. If during remand it is possible to establish that any claimed stressful event occurred (see Pentacost v. Principi, 16 Vet. App. 124, 128 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997)), the RO should schedule the veteran for a VA psychiatric examination to confirm or rule out a diagnosis of PTSD related to a corroborated stressor. On further review of the record, the Board notes that in a rating decision dated in September 2002, the RO denied entitlement to service connection for depression. The RO informed the veteran of that decision and his appellate rights in a letter dated in late September 2002. In early September 2003, the veteran's representative filed a notice of disagreement (NOD) requesting review of the decision by a Decision Review Officer at the RO. Since a NOD has been filed, the claim must be returned to the RO for review of the decision by a Veterans Service Center Manager or Decision Review Officer, at VA's discretion. If the claim is not allowed, the RO must prepare a statement of the case (SOC) that addresses the issue of entitlement to service connection for depression, to include as secondary to service-connected cancer of the larynx. See 38 C.F.R. § 3.2600 (2003); cf. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (when an appellant files a timely NOD and there is no SOC issued, the Board should remand, rather than refer, the issue to the RO for the issuance of a SOC). To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to his claims and to ensure full compliance with due process requirements, the 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 actions required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are fully complied with and satisfied. In particular, the veteran should be advised of the evidence needed to substantiate his claims as well as his obligation and VA's obligation in obtaining that evidence. 2. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. 3. To assist the veteran in corroboration of claimed stressors for PTSD, specifically the veteran's recollection of the death of a Sergeant Smith and two warrant officers in a grenade accident during his orientation at the Americal Combat Center when he arrived in Vietnam, the RO should order Morning Reports, DA Form 1, submitted by the 198th Infantry Brigade for May 1969 to the Director, National Personnel Records Center, ATTN: NCPMR-O, 9700 Page Avenue, St. Louis, MO 63132. 4. The RO should contact the veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and non-VA, from which he has received treatment or evaluation for neck spasms, dental matters or any psychiatric disability, including PTSD. In this regard, the veteran should be requested to identify the private dentist to whom he referred at the August 2001 hearing. With authorization from the veteran, the RO should attempt to obtain identified records that have not been secured previously. In any event, with authorization from the veteran, the RO should attempt to obtain: records from Spiegel Chiropractic Clinic dated from March 1998 to the present; records of neuropsychiatric testing or evaluation and any clinical records of Dr. Booth Jones of the H. Lee Moffitt Cancer Center, 12902 Magnolia Drive, Tampa, Florida 33612-9497, dated in 1998; and records from Percival M. Tamayo, M.D., Suite 2B, Heartland Professional Plaza, 6801 U.S. Hwy. 27 N, Sebring, Florida 33870, including a copy of a letter dated April 13, 1998, from Dr. Tamayo to the Office of Disability Determinations. In any event, the RO should obtain and associate with the claims file all VA treatment records for the veteran, including mental health care records from the Ft. Myers VA clinic, dated from January 1997 to the present. The RO should document actions taken to obtain the requested records. 5. Thereafter, the RO should arrange for a dental examination of the veteran to determine the nature and extent of any current dental condition. All indicated studies should be performed. The dentist should be requested to review the results of the examination and the record pertaining to the veteran's dental condition prior and subsequent to radiation therapy for his service- connected larynx cancer. The dentist should be requested to provide an opinion, with complete rationale, as to whether it is at least as likely as not that any current dental abnormality was caused or chronically worsened by radiation therapy for cancer of the larynx (7000 cGy over seven weeks starting in September 1994). In this regard, the dentist should be requested to take into account the impression of C. Edgar Davila, D.D.S., MS, Maxillofacial Prosthodontist and Dental Oncologist, who in August 1994, prior to radiation therapy, stated that the veteran showed a high caries index, which he said would get worse after X-ray therapy. The claims file must be made available to the dentist for review of pertinent documents. 6. The RO should also arrange for VA examination of the veteran by an examiner familiar with the effects of radiation therapy to determine the nature and extent of any current neck spasms. All indicated studies should be performed. Based on examination results and review of the record, the examiner should be requested to provide an opinion, with complete rationale, as to whether it is at least as likely as not that any current neck spasms are due to radiation therapy for service-connected larynx cancer (7000 cGy over seven weeks starting in September 1994). The claims file must be made available to the examiner for review of pertinent documents. 7. If information from Morning Reports or other evidence corroborates any of the veteran's claimed stressors, the RO should arrange for a VA psychiatric examination to confirm or rule out a diagnosis of PTSD related to such stressor(s). The claims file must be made available to the examiner for review of pertinent documents. 8. After the development requested above has been completed to the extent possible and any additional development deemed necessary by the RO has been accomplished, the RO should review the record and readjudicate the issues certified on appeal. If the benefits sought on appeal as to the claims for service connection for PTSD, neck spasms, claimed secondary to radiation therapy and dental disability, also claimed secondary to radiation therapy for service-connected cancer of the larynx, are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case that addresses all evidence not previously considered by the RO and informs the veteran of law and regulations pertinent to his claims. The veteran and his representative should be provided an appropriate opportunity to respond. The RO should appropriately issue a statement of the case pertaining to the issue of service connection for depression, claimed secondary to service- connected cancer of the larynx, with instructions as to the requirements for perfecting an appeal on that claim. A substantive appeal must be filed as to this issue. 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 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 case 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 2002) (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. 8.43 and 38.02. BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2002).