Citation Nr: 0400905 Decision Date: 01/12/04 Archive Date: 01/22/04 DOCKET NO. 02-21 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depression. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from April 1973 to April 1974. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in November 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appellant presented testimony at a hearing on appeal before a Decision Review Officer at the RO in February 2003. A transcript of the hearing has been associated with the record on appeal. This appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. As described below, certain actions are being requested of the RO. VA will notify the appellant if further action is required on your part. However, the appellant retains the right to submit additional evidence and argument on the matter being remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003) redefined the obligations of VA with respect to the duty to assist, eliminated the well-grounded claim requirement, and imposed on VA certain notification requirements enhancing the Department's duty to notify a claimant as to the information and evidence necessary to substantiate a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA is applicable to all claims filed on or after the date of enactment of the law, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106- 475, § 7(a), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107, note (Effective and Applicability Provisions) (West 2002). In the present case, the RO attempted to develop the claim in accordance with VA Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, para. 5.14(c) (Feb. 20, 1996). However, a review of the record reflects that the RO did not follow up on requests for additional private medical records, including records of treatment the veteran received as a spouse of a military member, from the National Personnel Records Center (NPRC). Further, she has not been afforded a VA examination to determine the nature, extent and etiology of any manifested neuropsychiatric disabilities. This, and other development indicated under Manual M21-1 and VCAA, must be done. See VCAA, in general; see also Patton v. West, 12 Vet. App. 272, 280 (1999). Moreover, the Board notes that service medical records reflect that the veteran requested a papanicolaou (PAP) smear in August 1973, which is during the approximate time period she avers she was raped. In addition, in September 1973, she reported for treatment for a headache that had been present for 12 hours. This is notable for two reasons. First, there are no indications of previous treatment for headaches in the service medical records. Second, following service, private medical records dated as early as 1988 reflect a diagnosis of migraine headaches, which the physician then discussed as a somatic manifestation of her psychiatric ailment. In addition, these records show a history of prescribed medications such as Demerol, Darvon, and Valium since the age of 23. Hence, the Board finds it is critical to obtain records of treatment accorded the veteran between 1974 and 1988, as well as to attempt to obtain further evidence, including buddy statements, that would describe her general well-being and health prior to the averred harassment and rape, and subsequent changes in health and behavior following the averred harassment and rape. To this end, it would be helpful to obtain statements of individuals in addition to her husband who may have known and observed her prior to the incidents she reports as stressors, such individuals who may have known her prior to her assignment at the 32nd Street Naval Station Disbursing Office in San Diego, California. The veteran's spouse has submitted a statement, but it appears that he was present on temporary active duty (TAD) for only a short period of time prior to the events the veteran claims as stressors. The veteran should be reminded, however, that it is possible that her spouse may remember the names of some of the permanent personnel in the office who were there prior to his arrival. Moreover, in a decision very recently promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the 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 Court made 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 court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCAA 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 Veterans Benefits Act of 2003 since has been passed, though, indicating VA may indeed adjudicate a claim prior to expiration of the one-year period following a VCAA notice. This adjudication usually occurs after 60 days from the date of mailing the VCAA notice, although the veteran still has a full one year to identify and/or submit additional supporting information and evidence. See the Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003). To ensure that the VA has met its duty to assist and to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following actions: 1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent (including all provisions under 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.102, 3.156(a), 3.159 and 3.326(a)); as well as the holdings in Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Charles v. Principi, 16 Vet. App. 370 (2002)), and the Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003). In particular, the RO should inform the appellant of the type of evidence required from her to substantiate her claim. The appellant should also be informed that the RO will assist her in obtaining identified evidence, should she require such assistance. The claims file must include documentation that there has been compliance with the VA's redefined duties to notify and assist a claimant as set forth in the VCAA and as specifically affecting the issue on appeal. 2. The RO should request that the veteran identify all VA and non-VA health care providers who treated her for any neuropsychiatric disability from her discharge from active service in April 1974 to the present. The RO should procure duly executed authorization for the release of private medical records. In particular, the RO should obtain copies of treatment accorded the veteran for her neuropsychiatric disabilities from the Psychiatric Institute in Fort Worth, Texas (in or around 1983 through 1985), Charter Hospital in Overland Park, Texas (in or around 1991), Brookhaven in Tulsa, Oklahoma (in or around 1992), MHMR in Independence, Kansas (dates unknown), and the Veterans Center in Fort Worth, Texas (dates unknown); and by Hugh McKay and Dr. Jeff Schluter of Fort Worth Texas (dates unknown), Robert C. Knipstein, M.D., Marvin Bates, CSW-ACP, Richard C. Male, Jr., MS, and Raymond E. Liverman, D.O., of Arlington, Texas (prior to, during and subsequent to 1988). 3. The RO should further request that the veteran provide specific information about her treatment in hospitals during her husband's active service. She should be asked to provide the names of the bases at which he was stationed, the dates of his assignment there, and the medical facilities at which she was treated, the dates of treatment, and any other pertinent information. Please remind the veteran to request this information from her husband, should she not be able to remember precisely where and when he was stationed. 4. Thereafter, the RO should request any and all treatment records, including clinical medical records and mental hygiene records, to include individual and group therapy records, from the identified medical health care facilities and/or the medical facilities associated with identified bases treatment she received as the dependent spouse of her husband while he was on active military duty. The RO should request that NPRC search for these records under the veteran's spouse's name and identification numbers as well as the veteran's name and identification numbers. 5. Following completion of the above development, the RO should then make an additional attempt to obtain any additional service medical and service personnel records for the veteran's period of active service. In particular, the RO should request that NPRC obtain any clinical and hospital medical records from the medical facility associated with Waves Sick Call, Naval Training Center, San Diego, California, including any and all results of any gynecological screening or treatment and follow-up for her period of active service from 1973 to 1974. NPRC should also be asked to obtain any clinical and hospital medical records of treatment accorded the veteran from the Regional Dispensary, Naval Supply Center, NRMC, San Diego, California, for her period of active service from 1973 to 1974. The RO is reminded to search under both the veteran's social security and service numbers, and to search under all names that the veteran has used. 6. The RO should also make specific attempts to obtain any additional service personnel records for her period of active service from 1973 to 1974. The RO is reminded to search under both the veteran's social security and service numbers, and to search under all names that the veteran has used. 7. If records of treatment accorded the veteran as the dependent spouse of an active duty military member, or her service personnel and service medical records-including clinical and hospital medical records for treatment accorded her while on active service herself-are unavailable, the RO should use alternative sources to obtain such records, using the information of record and any additional information the veteran may provide. The RO should consider special follow-up by its military records specialist and/or referral of the case for a formal finding on the unavailability of the requested records. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part III, chapter 4, paras. 4.28 and 4.29. If necessary, the RO should request that the veteran augment the information that she has already provided. 8. The RO should send the veteran a development letter asking her to again give as comprehensive a statement as possible regarding the stressors she experienced during her active duty service. Please remind the veteran that it is necessary to give as specific and detailed information about the persons, places, and events involved as possible, including as accurate dates as possible, so as to enable verification of the identified stressors. 9. Offer the veteran an opportunity to procure "buddy statements" from service members who may have witnessed the events she identifies as her stressors or her behavior, overall, during her entire period of active service from 1973 to 1974. In addition, please explain that she may also obtain statements from individuals including friends or additional family members to whom she may have confided these events and who may have witnessed her behavior and health overall, and subsequent changes in her behavior and health following the averred stressors, either during her active service or immediately following her discharge from active service. In the present case, it is desirable to obtain corroboration by persons in addition to her husband, who can attest to her overall behavior and health prior to his arrival at the 32nd Street Naval Station Disbursing Office in San Diego, California, and hence prior to the events she avers as stressors, in addition to verifying the condition of the 32nd Street Naval Station Disbursing Office and her behavior and health after the averred stressors occurred. Please also remind the veteran that she may request information from her husband, as to the names of individuals who were permanently stationed at the office and who may have witnessed the harassment she avers occurred prior to and after the averred rape, and who may have witnessed changes in her behavior. 10. Following this development, the RO should then attempt to verify the veteran's averred stressors under the specialized development procedures proscribed under M21-1, Part III, 5.14(c)(5), involving stressors that are the result of personal assault. The RO is reminded to search under both the veteran's social security and service numbers, and to search under all names that the veteran has used. In addition, the RO should complete any and all follow-up actions necessary, including requesting Morning Reports and other such reports which could be used to verify daily personnel actions from NPRC. 11. When the above development has been completed, the RO should make arrangements to afford the veteran a VA psychiatric examination to determine the nature, extent, and etiology of any manifested neuropsychiatric disability, to include depression and PTSD. All indicated tests and studies should be performed. If other examinations by specialists are indicated, they should be conducted. Send the claims folder to the examiners for review. The examiners should address the following matters. ? Summarize the medical history, including the onset and course, of any neuropsychiatric disorder, to include depression and PTSD. ? Describe any current symptoms and manifestations attributed to any neuropsychiatric symptoms, to include depression and PTSD. ? Complete any diagnostic and clinical tests required and provide diagnoses for all neuropsychiatric symptoms identified. ? Provide an opinion as to the date of onset and etiology for any currently manifested neuropsychiatric disabilities identified. The examiner(s) is(are) asked to offer an opinion as to whether it is at least as likely as not that any currently manifested neuropsychiatric disorder, to include depression and PTSD, are in part or in total the results of stressors she experienced during her active service, as opposed to stressors she experienced prior to her active service as a result of abuse she suffered as a child in her family. In the alternative, the examiner(s) is(are) asked to offer an opinion as to whether it is at least as likely as not that any currently manifested neuropsychiatric disorder, to include depression and PTSD, are the result of aggravation of any pre-existing neuropsychiatric condition or tendency toward a neuropsychiatric condition she may have manifested as a result of abuse she suffered as a child in her family. 12. After receipt of any and all newly acquired evidence, the RO should again review the veteran's claim for service connection for a neuropsychiatric disorder, to include depression and PTSD, in accordance with Allen v. Brown, 7 Vet. App. 439, 446 (1995). If the decision remains in any way adverse to the veteran, she and her representative should be furnished with a supplemental statement of the case, and with a reasonable period of time within which to respond. The case should thereafter be returned to the Board for further review, as appropriate. The veteran need take no action until she is so informed. 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, supra. The veteran is reminded that it is her responsibility to appear for any and all scheduled examinations and that failure to do so could result in the denial of her claim. 38 C.F.R. § 3.655 (2003). The Board intimates no opinion as to the ultimate outcome of this case. 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 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. _________________________________________________ A. BRYANT 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) (2003).