Citation Nr: 0426862 Decision Date: 09/27/04 Archive Date: 10/06/04 DOCKET NO. 95-42 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 20 percent for residuals of a fracture of L2-L3. REPRESENTATION Appellant represented by: Robert A. Friedman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from January 1978 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision by the Boise, Idaho, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a July 1996 RO hearing; a copy of the transcript is associated with the record. On April 20, 1998, the Board, in pertinent part, remanded the case to the RO for further evidentiary development. In October 2001, the veteran's representative requested reconsideration and vacatur of the March 1999, June 2001, and July 2001 Board decisions and requested the case be remanded for completion of development ordered in the April 1998 Board remand. In November 2001, the Board notified the veteran that his motion for reconsideration was moot based upon a determination to vacate the April 1998 and July 2001 Board decisions as to the issue of entitlement to an increased evaluation for residuals of a fracture of L2-L3 and to vacate the March 1999 Board decision as to the issue of entitlement to service connection for a psychiatric disorder. In December 2001, the Board remanded the case to the RO for additional development. In separate, contemporaneously- issued Board decisions, the Board notes that the April 1998 determination as to the issue of entitlement to an increased rating for residuals of a fracture of L2-L3, the March 1999 determination as to the issue of entitlement to service connection for a psychiatric disorder, and the July 2001 determination as to the issue of entitlement to an increased rating for residuals of a fracture of L2-L3 were vacated. In an August 2004 statement, the veteran withdrew his request for a Travel Board hearing. 38 C.F.R. § 20.704 (2003). The case now is before the Board for further appellate consideration. 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 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to claims for VA benefits not decided as of that date. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003). As noted above, the Board remanded the case in December 2001 for further development to include: obtaining additional treatment records, including copies of August and September 1998 VA examination reports; Social Security Administration (SSA) records; a psychiatric examination for a nexus opinion as to whether a diagnosed psychiatric disorder was secondary to the veteran's lumbar spine disability; an orthopedic examination; and complying with the notice and duty to assist provisions of the VCAA. The RO has obtained SSA records and VA treatment records from 1990 to September 2003; however, an August/September 2000 hospital discharge summary report and an alleged August 1998 VA examination report have not been associated with the record. Moreover, the psychiatric examiner failed to provide the required nexus opinion, the orthopedic examination was not conducted by an orthopedic specialist as instructed, and the RO has not fully complied with the notice and duty to assist provisions of the VCAA. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the case must be remanded to the RO for compliance with the Board's December 2001 remand. As shown above, the veteran seeks entitlement to service connection for a psychiatric disorder. In general, applicable laws and regulations indicate that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). Certain chronic disabilities, such as psychoses, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). Additionally, service connection may be granted for a disorder found to be proximately due to, or the result of, a service-connected disability, including on the basis of aggravation. 38 C.F.R. § 3.310 (2003); Allen v. Brown, 7 Vet. App. 439 (1995). Generally, when a veteran contends that a service-connected disorder has caused a new disability, there must be competent medical evidence that the secondary disability was caused or chronically worsened by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes recent diagnoses of both major depressive disorder and PTSD. The veteran claims that his psychiatric disorder(s) are either secondary to his service-connected disability and/or the result of an August 1979 motor vehicle accident (MVA) and/or sexual harassment/assault while on active duty in Germany. During his July 1996 testimony and at a May 2002 VA psychiatric examination, the veteran gave the name of one of the service personnel stationed in Germany, Sergeant [redacted], who allegedly was noted for making sexual advances. Sergeant [redacted] and a Sergeant [redacted] were also in the front seat of the vehicle at the time of the August 1979 MVA. However, the Board notes that the RO has not developed the veteran's claim for service connection for a psychiatric disorder to include as one for PTSD as a result of an August MVA or alleged sexual harassment/assault. In this regard, the Board notes that VA has changed the criteria set forth in 38 C.F.R. § 3.404(f) pertaining to service connection for PTSD twice since 1994. The first amendments became effective on June 18, 1999. See 64 Fed. Reg. 32,808 (June 18, 1999). The second amendments became effective March 7, 2002. See 67 Fed. Reg. 10,330, 10,332 (Mar. 7, 2002) (codified at 38 C.F.R. § 3.304(f) (2003)). The 1998 and 1999 criteria for evaluating PTSD claims are substantially the same, as both versions of the regulations require medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in- service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. See 38 C.F.R. § 3.304(f) (1998), (2001). The 1999 amendments primarily codified the decision of the Court in Cohen v. Brown, 10 Vet. App. 128 (1997), and brought 38 C.F.R. § 3.304(f) in line with the governing statute, 38 U.S.C.A. § 1154(b) (West 1991), which relaxed certain evidentiary requirements for PTSD claimants who have combat- related stressors. The 2002 amendments codified manual procedures pertaining to PTSD claims resulting from personal assault. With regard to PTSD, VA regulations reflect that symptoms attributable to PTSD are often not manifest in service. Accordingly, service connection for PTSD requires a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), credible supporting evidence that the claimed in-service stressor(s) actually occurred, and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f) (2003). Because it appears that the veteran did not engage in combat with the enemy, his lay testimony or statements alone are not enough to establish the occurrence of the alleged stressors, including one of personal assault. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Instead, the record must contain service records or other credible evidence, which corroborates the stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f) (2003); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). The corroboration of every detail is not required. Pentecost v. Principi, 16 Vet. App. 124 (2002) (citing Suozzi v. Brown, 10 Vet. App. 307 (1997). Such corroborating evidence cannot consist solely of after- the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). With regard to a claimed stressor involving allegations of sexual harassment/ assault, VA recognizes that veterans claiming service connection for disability due to an in- service personal assault face unique problems documenting their claims. Personal assault is an event of human design that threatens or inflicts harm. Although these incidents are most often thought of as involving female veterans, male veterans may also be involved. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 (April 30, 1999) (M21-1). Because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Therefore, alternative evidence must be sought. The M21-1 includes a sample letter to be sent to the veteran, asking him to provide detail as to any treatment he had received, any family or friends he had communicated with concerning this claimed personal assault, and any law enforcement or medical records pertaining to the alleged assault. M21-1, Part III, 5.14 (April 30, 1999). In particular, the Board observes that the Court held in Patton v. West, 12 Vet. App. 272 (1999), that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998) (5.14 is a substantive rule and the equivalent of a VA regulation). With respect to claims involving personal assault, all available evidence must be carefully evaluated. If the military records do not document that a personal assault occurred, alternative evidence might still establish an in- service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. See M21-1, Part III, 5.14(8). Service and post-service medical records show treatment for alcohol and/or substance abuse. The Board observes that, in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), reh'g en banc denied, 268 F.3d 1340 (2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 U.S.C.A. § 1110 (West 2002) does not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability, or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connection disability, such as PTSD. Service personnel records confirm that the veteran was stationed in Germany, sustained injuries to his back in an August 1979 MVA and was treated, and later discharged from service for alcohol and substance abuse. The Board finds that the RO also should develop the veteran's service-connection claim for a psychiatric disorder as one for PTSD as due to stressors of personal assault (sexual harassment/assault) and as a result of an August 1979 MVA, while stationed in Germany. The RO should attempt to obtain copies of any missing personnel records for the veteran to include copies of any Article 15s or any reports of an August 1979 MVA accident. In addition, the RO should obtain copies of DA Forms 20 for servicemen named Sergeant [redacted] and [redacted], who were stationed in Germany anytime during the period from May 1978 to November 1980. The veteran also claims that, in November 1994, VA determined that he was not eligible for additional vocational rehabilitation training due to his psychiatric disorder. As the duty to assist includes obtaining pertinent VA vocational rehabilitation and treatment records and obtaining a medical examination and opinion when necessary to make a determination, the Board feels that the RO should associate with the record the veteran's vocational rehabilitation folder, obtain any missing non-VA and VA treatment records, should ask the veteran to complete an in-service personal assault questionnaire, and should afford the veteran another examination to clarify his psychiatric diagnoses and determine whether he has any psychiatric disorder, to include PTSD, which may be related to his service-connected low back disability or to service, such as an August 1979 MVA accident or sexual harassment/assault while stationed in Germany. The Board observes that when it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition. See, e.g., Mittleider v. West, 11 Vet. App. 181, 182 (1998). In preparing a summary of stressors for the review of the VA examiner, the RO should include the veteran's response, if any, to the RO's request for personal assault information. The Board reminds the veteran that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The veteran also seeks entitlement to an increased rating for his service-connected disability of the lumbar spine, currently rated as 20 percent disabling. The Board observes that the March 1997 VA examiner noted that February 1995 magnetic resonance imaging (MRI) reflected the presence of bulging discs (that is, degenerative disk disease (DDD)) of the lumbosacral spine and January 1998 VA X-rays and May 2002 MRI studies revealed mild DDD at L2-L3. The rating criteria pertaining to diseases and injuries of the spine and intervertebral disc syndrome (IDS) have been amended four times during the pendency of this appeal, effective in August 2002, September 2002, August 2003, and September 2003. See 67 Fed. Reg. 48,784-87 (July 26, 2002), 67 Fed. Reg. 54,345-49 (Aug. 22, 2002), 68 Fed. Reg. 51,454- 58 (Aug. 27, 2003), and 69 Fed. Reg. 32,449 (June 10, 2004). The RO has notified the veteran of some, but not all, of these revisions. The May 2002 VA examination report did not contain clinical findings addressing the revised rating criteria, which includes both orthopedic and neurologic criteria, particularly those related to IDS. The veteran should be afforded VA orthopedic and neurologic examinations for his low back disability to consider both the former and revised IDS and spinal disorders rating criteria. The veteran filed his increased rating claim in October 1994. Therefore, the RO should ask the veteran to identify and sign releases for health care providers that have treated him for his low back disorder since October 1993 and should obtain missing non-VA and VA treatment records for those health care providers that the veteran indicates may still have records, in particular an August/September 2000 VA hospital discharge summary report and an alleged August 1998 VA examination report. On remand, the RO should consider all likely diagnostic codes for the veteran's low back disorder, to include both the old (pre-August 2002) and revised rating criteria (August 2002, September 2002, September 2003, and June 2004). Finally, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time without compliance with the notice and duty to assist provisions of the VCAA. See Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, for these reasons, a remand is required. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO should ask the veteran to identify all VA and non-VA health care providers that have treated him for a psychiatric disorder, to include PTSD and depression, from November 1980 to the present and for his low back disability from October 1993 to the present. The RO should obtain records from each health care provider, who he indicates may still have records, if not already in the claims file. In particular, the RO should associate with the claims file any missing records from the Spokane VA Medical Center, including an August/September 2000 hospital discharge summary report, and an alleged August 1998 VA examination report. The RO should also associate a copy of the veteran's vocational rehabilitation folder with the record. If any of the requested records are unavailable, please have VA or the provider so indicate. 2. The RO should ask the veteran to give a comprehensive statement regarding his alleged stressor incident(s) and associate it with the claims file. 3. The RO should obtain and associate with the claims file copies of any missing personnel records for the veteran to include copies of any records of any Article 15s or any reports of an August 1979 MVA while the veteran was stationed in Germany from May 1978 to November 1980. If additional records for the veteran are not found, the RO should document the record and explain what actions it took and the results of its efforts. The RO also should obtain and associate with the claims file copies of DA Forms 20 for servicemen named Sergeant [redacted] and Sergeant [redacted], who were assigned to the same battalion and stationed in Germany anytime during the period from May 1978 to November 1980. If records for either of the named servicemen are not found, the RO should document the record and explain what actions it took and the results of its efforts. 4. After items 1 through 3 are completed, the RO should prepare a report detailing the nature of any in-service stressor that was established by the record. If none was verified, the report will so state. This report is then to be added to the claims file. 5. The RO must review the entire file and ensure for the issues on appeal that all notification and development necessary to comply with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159 (2003)), as well as VAOPGCPREC 7-2004, is fully satisfied. In particular, the RO must inform the claimant (1) about the information and evidence not of record that is necessary to substantiate his claim for an increased rating and his claim for service connection for a psychiatric disorder, to include PTSD, on a direct basis under 38 C.F.R. § 3.303, a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309, and on a secondary basis under 38 C.F.R. § 3.310; (2) inform him of any information and evidence not of record (a) that is necessary to substantiate his claims, (b) that VA has or will seek to provide, and (c) that the claimant is expected to provide; and (3) request or tell the claimant to provide any evidence in his possession that pertains to his claims. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the issues on appeal. 6. After items 1 through 5 are completed, the RO should make arrangements with the appropriate VA medical facility for the veteran to be afforded an examination by a psychiatrist, who has not already examined him, to determine whether any psychiatric disorder or disorders are present, and, if so, the correct diagnostic classification and etiology of any disorder found. The claims file and this REMAND must be reviewed by the examiner in conjunction with the examination. All special studies or tests including psychological testing and evaluations, such as the Minnesota Multiphasic Psychological Inventory, deemed necessary by the examiner are to be accomplished. The examination report should include a detailed account of all pathology found to be present. The examiner should provide explicit responses to the following questions: (a) Does the veteran have a psychiatric disability? (b) If there is a psychiatric disorder(s), the examiner should determine the etiology and the nature and extent of such disorder(s). For each identified disorder, the examiner should offer opinions as to whether it is at least as likely as not (50 percent or more probability) that such disorder: (1) began during, or was aggravated (worsened), as the result of some incident of active service, to include as a result of an August 1979 MVA or sexual harassment/assault while in stationed in Germany between May 1978 and November 1980, (2) was a psychosis manifested within one year after discharge from service (in November 1980) or (3) was proximately due to, or the result of, the veteran's service-connected residuals of a fracture of L2-L3, including on the basis of aggravation. For example, if the veteran is diagnosed with depression due to pain associated with service- connected residuals of a fracture to L2- L3, his depression would be service connectable. (c) If a diagnosis of PTSD is appropriate, the examiner should specify the credible "stressor(s)" that caused the disorder and the evidence upon which that opinion was based to establish the existence of the stressor(s). The examiner should comment explicitly upon whether the veteran's alleged stressor was as a result of an August 1979 MVA or sexual harassment/assault while in stationed in Germany between May 1978 and November 1980. If so, the examiner should also comment explicitly upon whether there is a link between such a stressor and the current symptoms, if any. The rationale for any opinion and all clinical findings should be reported in detail. If any requested medical opinion cannot be given, the examiner should state the reason why. 7. Following completion of 1 through 5 above, the RO should make arrangements with the appropriate VA medical facility for the veteran to be afforded a neurologic examination and an orthopedic by an orthopedic specialist. The claims file and treatment records must be made available to, and be reviewed by, the examiner(s) in connection with the examination(s), and should so indicate in the report(s). The examiner(s) should perform any tests or studies deemed necessary for an accurate assessment, including X-ray examination and range of motion studies expressed in degrees. The veteran should be afforded orthopedic and neurologic examinations to determine the nature and extent of the veteran's low back (residuals of a fracture of L2-L3) disability. If range of motion studies demonstrate any limitation of motion, the examiner(s) should discuss whether the limitation may be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The examiner(s) should specify any anatomical damage, and describe any functional loss, including the inability to perform normal working movements with normal excursion, strength, speed, coordination, and endurance. The examiner(s) should specify any functional loss due to pain or weakness, if possible measured in degrees of limitation of motion, and document all objective evidence of those symptoms. In addition, the examiner(s) should provide an opinion as to the degree of any functional loss likely to result from a flare-up of symptoms or on extended use. The examiner(s) also should indicate whether there is unfavorable ankylosis; favorable ankylosis; stiffness, pain (whether or not it radiates), or aching in the area of the spine affected by residuals of injury or disease; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reverse lordosis, or abnormal kyphosis; localized tenderness not resulting in abnormal gait or abnormal spinal contour. The examiner(s) should identify the underlying pathologic process causing any low back pain. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) represents favorable ankylosis. If the veteran has degenerative disc disease of the lumbar spine as a residual of a fracture of L2-L3, the orthopedic/neurologic examiner(s) should discuss the total duration of any incapacitating episodes (number of days) in the past 12 months, as well as comment on any related chronic orthopedic or neurological manifestations. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner(s) should give detailed clinical findings of the symptomatology attributable to the veteran's service- connected low back disability. The examiner(s) should clearly outline the rationale for any opinion expressed. 8. After completion of the above, the RO should readjudicate the appellant's service-connection and increased rating claims, including any additional evidence obtained on remand. In particular, the RO's review for the veteran's low back disability should include consideration of DeLuca v. Brown, 8 Vet. App. 202 (1995), and the provisions of 38 C.F.R. §§ 4.40 and 4.45 (2003); all applicable diagnostic codes under 38 C.F.R. § 4.71a, pre-August 2002 and the revised IDS and spinal rating criteria; and a determination as to which are more favorable to the veteran. If any determination remains unfavorable to the appellant, he and his attorney should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review. 9. After completion of the foregoing, the RO should review the file and ensure that all of the directives of this REMAND have been carried out in full. If not, the RO should take any action necessary to ensure such compliance. 38 C.F.R. § 4.2 (2003); see also Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The purposes of this remand are to comply with the VCAA, to further develop the appellant's claims and to ensure due process. No action by the appellant is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of the claims. 38 C.F.R. § 3.655 (2003). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant and his attorney have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ 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).