Citation Nr: 0335367 Decision Date: 12/16/03 Archive Date: 12/24/03 DOCKET NO. 96-36 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for headaches. 2. Entitlement to service connection for a chronic psychiatric disorder to include post-traumatic stress disorder. 3. Entitlement to service connection for a chronic back disorder to include pain. 4. Entitlement to service connection for a chronic bilateral eye disorder to include flash burn residuals and spots. 5. Entitlement to service connection for a chronic neurological disorder to include blackouts. 6. Entitlement to an initial compensable disability evaluation for the veteran's right (major) fifth metacarpal fracture residuals. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from December 1963 to June 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1996 rating decision of the New Orleans, Louisiana, Regional Office (RO) which denied service connection for a chronic psychiatric disorder to include post-traumatic stress disorder (PTSD). In July 1997, the RO determined that its April 3, 1970, rating decision was clearly and unmistakably erroneous in failing to establish service connection for right (major) fifth metacarpal fracture residuals; granted service connection and assigned a noncompensable evaluation for that disability; determined that new and material evidence had not been received to reopen the veteran's claim of entitlement to service connection for headaches; denied service connection for a chronic back disorder to include pain, a chronic bilateral eye disorder to include flash burn residuals and spots, and a chronic neurological disorder to include blackouts. In November 1999, the Board remanded the veteran's application and claims to the RO for additional action. In February 2001, the Board remanded the veteran's application and claims to the RO for additional action. In July 2003, the Board remanded the veteran's application and claims to the RO in order to afford the veteran a hearing before a Veterans Law Judge sitting at the RO. In October 2003, the veteran was scheduled for a November 2003 hearing before a Veterans Law Judge sitting at the RO. The veteran subsequently failed to report for the scheduled hearing. The veteran has been represented throughout this appeal by the American Legion. The Board observes that the veteran has appealed from the initial evaluation assigned for his right (major) fifth metacarpal fracture residuals. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that it was specifically not a claim for an increased disability evaluation. However, the Court did not provide a specific name for the issue in lieu of "increased disability evaluation." In the absence of such direction, the Board has framed the issue as entitlement to an initial compensable evaluation of the veteran's right (fifth) metacarpal fracture residuals. The veteran is not prejudiced by such action. The Board has not dismissed any issue and the law and regulations governing the evaluation of disabilities is the same regardless of how the issue is styled. REMAND The veteran asserts that he sustained a chronic psychiatric disability to include PTSD, a chronic back disorder, a chronic headache disorder, and a chronic neurological disorder to include blackouts as a result of beatings which occurred while he was in a naval brig and at the hands of his fellow servicemen during his period of naval basic training in 1963 and later during active service. The veteran advances further that he suffered bilateral eye injuries during active service. Where a veteran is seeking service connection for PTSD based upon alleged inservice personal assault, the Court has clarified that the VA has provided special evidentiary development procedures, including the interpretation of behavioral changes by a clinician and interpretation in relation to a medical diagnosis. Patton v. West, 12 Vet. App. 272 (1999) (citing the VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). It does not appear that the RO has complied with the development procedures contained in M21-1. The veteran asserts that he was seen at Philadelphia General Hospital for his psychiatric complaints. Clinical documentation of the cited treatment has not been incorporated into the record. In reviewing a similar factual scenario, the Court has held that the VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). The veteran has not been afforded a VA examination for compensation purposes which addresses the nature and etiology of his claimed chronic psychiatric, back, eye, and neurological disabilities. While the RO previously attempted to schedule the veteran for a VA examination for compensation purposes, the Board observes that the examination notices were sent to incorrect addresses. The veteran's current address has now been identified. The Court has held that the VA's statutory duty to assist the veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In August 2002, the Secretary of the VA amended the portions of the Schedule For Rating Disabilities applicable to finger and hand disabilities. The Board observes that the evaluation of the veteran's right (major) metacarpal fracture residuals has not been reviewed by the RO under the amended regulations. In August 2003, the RO provided written notice of the Veterans Claims Assistance Act of 2000 (VCAA) to the veteran at his correct address. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently invalidated the thirty-day response period contained in 38 C.F.R. § 3.159(b)(1) (2003) as being inconsistent with 38 U.S.C.A. § 5103(b)(1) (West 2002). Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003). The Federal Circuit found that the thirty-day period provided in § 3.159(b)(1) in which to respond to a Veterans Claims Assistance Act of 2000 (VCAA) notice to be misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, the RO must take this opportunity to inform the veteran that a period of one full year may be taken to respond to a VCAA notice notwithstanding any previously provided information. Regrettably, this case is REMANDED for the following action: 1. The RO must 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 notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2003); and Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) are fully met. 2. The RO should then contact the veteran and request that he (1) provide additional details as to the circumstances of his confinement to a naval brig and inservice harassment by his naval superiors and other fellow servicemen; (2) identify any independently verifiable evidence of behavioral changes which occurred at the time of the alleged stressors; (3) provide a list of the names and addresses of any fellow service personnel or civilians who may be able to provide documentation as to the occurrence of the claimed stressors, and/or changes which they observed in his behavior at the time of the claimed stressors; and (4) information as to all treatment of his psychiatric, back, eye, and neurological disabilities, headaches, and right fifth metacarpal fracture residuals. Upon receipt of the requested information and the appropriate releases, the RO should contact Philadelphia General Hospital and all other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the veteran. All evidence obtained should be associated with the veteran's claims folder. 3. The RO should then contact the National Personnel Records Center and request that the veteran's service personnel file (201 or equivalent) be forwarded for incorporation into the record. 4. The RO should then schedule the veteran for VA examination for compensation purposes in order to determine the current nature and severity of his claimed chronic psychiatric disability, chronic back disability, chronic bilateral eye disorder, and chronic neurological disability and service-connected right metacarpal fracture residuals. All indicated tests and studies, including psychological testing, should be accomplished and the findings then reported in detail. If a diagnosis of PTSD is advanced, the psychiatric examiner should identify the specific stressors supporting such a diagnosis. The examiner or examiners should identify the limitation of activity imposed by the veteran's service-connected right metacarpal fracture residuals and any associated pain with a full description of the effect of the disability upon his ordinary activities. The examiner or examiners should fully describe any weakened movement, excess fatigability, and incoordination present. Determinations on whether the veteran exhibits pain with use of the right hand should be noted and described. If feasible, the determinations concerning pain, weakness and fatigability should be portrayed in terms of the degree of additional range of motion loss or ankylosis. If such a determination is not feasible, this should be stated for the record and the reasons provided. The evaluation is to take into consideration the criteria, both prior to and effective August 26, 2002, for rating finger and hand disorders. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The examiner or examiners should advance an opinion addressing the following questions: Is it more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic psychiatric disability, chronic back disability, chronic eye disability, and chronic neurological disability had their onset during active service; are etiologically-related to the veteran's inservice psychiatric, back, and eye complaints; or are in any other way causally related to active service? Send the claims folder to the examiner or examiners for review. The examination report should specifically state that such a review was conducted. 5. The RO should then readjudicate whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for headaches; service connection for a chronic psychiatric disorder to include PTSD, a chronic back disorder to include pain, a chronic bilateral eye disorder to include flash burn residuals and spots, and a chronic neurological disability to include blackouts; and his entitlement to an initial compensable evaluation for his right (major) fifth metacarpal fracture residuals with express consideration of the Court's decision in Karnas v. Derwinski, 1 Vet. App. 308 (1991). If the benefits sought on appeal remain denied, the veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the application and claims for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The veteran should be given the opportunity to respond to the SSOC. The veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. 8.44- 8.45 and 38.02-38.03. _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2003).