Citation Nr: 0421697 Decision Date: 08/09/04 Archive Date: 08/17/04 DOCKET NO. 00-08 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a psychiatric disability to include post-traumatic stress disorder (PTSD) due to personal assault. 2. Entitlement to service connection for scars. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran (appellant) served on active duty from December 1973 to March 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran seeks service connection for a nervous disability and for scars. He states that he was assaulted in service and that he has PTSD and scars as a result of this assault. He has also stated that he had cut himself in the stomach during service, and was treated at a military medical center in North Carolina, and that he also cut the top of his left hand when he was on leave and treated at the Central Baptist Hospital in Lexington, Kentucky. The veteran's service medical records show that he was treated in July 1974 in order to check sutures. The examiner stated that the wound looked clean with no edema or redness, and no discharge noted. The wound was re-wrapped and medication was applied. The veteran was to return for dressing change. The examiner referred to an ER note that was attached. The impression was abdominal wound and wound of right hand with sutures both areas, laceration left lower quadrant and right hand. The Board notes that the ER note referred to by the examiner is not included in the veteran's service medical records. A private examiner has found that the veteran has anxiety and depression as noted in a January 2000 examination report. The veteran informed that examiner that he had PTSD related to a military stint. On VA examination in February 2002, the examiner diagnosed PTSD traits, non-service connected. The veteran has argued that the examiner did not properly examine him and that the examiner had no records of the veteran to review. The Board notes that the examiner did not indicate in the examination report that the claims file had been reviewed. VA regulations require that each disability be viewed in relation to its history both in the examination and in the evaluation of the disability. 38 C.F.R. § 4.1 (2003). Thus, it is essential that the examining physician have the veteran's medical records to review in conjunction with the 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 addition, the veteran has not been examined for scars or to determine if any scars present are related to the in-service treatment for lacerations. In PTSD cases where the veteran asserts personal assault as the in-service stressor, VA has a heightened duty to assist in gathering evidence corroborating the in-service stressors in accordance with the provisions of VA Adjudication Manual M21-1. Patton v. West, 12 Vet. App. 272 (1999). In such cases, M21-1 provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. See M21-1, part III, 5.14(c). As there has been no development of the claim under M21-1, the Board finds that addition action must be take to ensure that the VA's duty to assist the veteran in the development of his claim has been complied with. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f) as amended effective March 7, 2002, 67 Fed. Reg. 10330-10332 (March 7, 2002). Further development on these issues is required. In view of the above, the case is hereby REMANDED to the RO for the following action: 1. The RO must review the claims folder and ensure that all notification and development required by the Veterans Claims Assistance Act of 2000 is completed. In particular, the RO should ensure that the new notification requirements and development procedures found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) are satisfied to the extent required by law. In this regard, the veteran should receive specific notice as to the type of evidence necessary to substantiate his claim and the division of responsibilities between the veteran and VA in obtaining that evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As part of the notice required under the new law, the RO should ask the veteran to provide information regarding all medical treatment for the disabilities at issue here that has not already been made part of the record. Specific information should be requested from the veteran regarding any treatment he received for injuries in service. The RO should assist the veteran in obtaining evidence by following the procedures set forth in 38 C.F.R. § 3.159 (2003). Of particular interest are records of treatment during service at an ER for wounds referred to in the July 1974 service record report. Also records should be requested from the Central Baptist Hospital in Lexington, Kentucky. If records sought are not obtained, the RO should notify the veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. Once obtained, all records must be permanently associated with the claims folder. 2. The RO should take appropriate steps to contact the veteran and obtain a detailed description of the events surrounding his claimed assault during service. The RO's inquiry should include possible sources listed in M21-1, part III, 5.14(c)(5). The veteran should be as specific as possible as to the date, place, and circumstances of the incident, and the names of any individuals involved. 3. The RO should also obtain and associate with the claims folder the veteran's military personnel file and all records pertaining to any disciplinary actions. All available administrative actions or reports concerning his discharge from service should be obtained. 4. The veteran should be afforded a VA psychiatric examination to determine the correct diagnosis and, if feasible, date of onset of any identified psychiatric disorder, to include whether he has PTSD under the criteria in DSM IV. The veteran must be informed of the potential consequences of his failure to report for any scheduled examination, and a copy of this notification must be associated with the claims file. In conjunction with the examination, the claims folder must be made available to the physician for review. A notation to the effect that this record review took place should be included in the report of the examiner. All appropriate testing should be undertaken in connection with the examination. The psychiatrist should describe all findings in detail and provide a complete rationale for all opinions offered. If PTSD is diagnosed, the physician should clearly identify the claimed events which are considered stressors supporting the diagnosis, and fully explain why the stressors are considered sufficient under DSM-IV. The physician should describe all findings in detail and provide a complete rationale for all opinions offered. Furthermore, the examiner should render an opinion with complete rationale, as to whether any other current psychiatric disorder is related to service. 5. The RO should schedule the veteran for a VA examination to determine if he has any scars, and if so, the etiology of any scars found. The veteran must be informed of the potential consequences of his failure to report for any scheduled examination, and a copy of this notification must be associated with the claims file. In conjunction with the examination, the claims folder must be made available to the physician for review. A notation to the effect that this record review took place should be included in the report of the examiner. If any scars are noted, the exact location of the scars should be indicated. The examiner should offer an opinion with complete rationale as to whether any scars noted are related to the veteran's military service. The physician should describe all findings in detail and provide a complete rationale for all opinions offered. 6. When the above development has been completed, the RO should review the record and ensure that the directives of this remand are complied with in full. The RO is advised that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 7. Thereafter, the RO should review the record and ensure that all development actions have been conducted and completed in full. The RO should then undertake any other action required to comply with the notice and duty-to-assist requirements of the VCAA and VA's implementing regulations. Then, the RO should re-adjudicate the issues on appeal. If any benefit sought remains denied, a supplemental statement of the case (SSOC) should be issued, and the veteran should be afforded an opportunity to respond before the case is returned to the Board for further appellate review. The SSOC must contain notice of all relevant actions taken on the claim, including a summary of the evidence received since the issuance of the last SSOC, and applicable law and regulations considered pertinent to the issues currently on appeal, including 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. 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 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. 8.44-8.45 and 38.02-38.03. _________________________________________________ F. JUDGE FLOWERS 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).