Citation Nr: 0428637 Decision Date: 10/19/04 Archive Date: 10/28/04 DOCKET NO. 99-08 101 ) DATE On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of a right knee injury. 2. Entitlement to an initial compensable evaluation for allergic rhinitis. 3. Entitlement to a higher initial evaluation for a psychiatric disability, evaluated as 50 percent disabling. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service in the United States Air Force from May 1995 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that, in part, assigned an initial noncompensable evaluation for the appellant's allergic rhinitis, assigned an initial 50 percent evaluation for her service-connected psychiatric disability and denied claims of entitlement to service connection for right knee injury residuals and for PTSD. During the pendency of the appeal, the RO increased the appellant's psychiatric disability evaluation from 10 percent to 50 percent; however, it is presumed that she is seeking the maximum benefit allowed by law and regulation, and "it follows that such a claim remains in controversy where less than the maximum available benefit is awarded." AB v. Brown, 6 Vet. App. 35, 38 (1993). The appellant has appealed the initial noncompensable rating that was assigned for her allergic rhinitis when service connection was granted, as well as the initial 50 percent evaluation assigned to the psychiatric disability. The appellant is, in effect, asking for higher ratings effective from the date service connection was granted. Consequently, the Board will consider the entire time period in question, from the original grant of service connection to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). Thus, the rating issues are as set out on the title page. In March 2004, a Board hearing was held at the RO before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b). A transcript of that hearing has been associated with the claims file. At that Board hearing, the appellant submitted additional evidence pertaining to her psychiatric disability claims. The appellant also waived review of the evidence by the agency of original jurisdiction in a VA Form 21-4138 submitted on the same day, and therefore referral to the RO of evidence received directly by the Board is not required. 38 C.F.R. § 20.1304. However, the appellant subsequently submitted more evidence to the Board in June 2004, namely an audiotape and printed materials, without a waiver. Nevertheless, because the issues to which the evidence relates are being remanded, the RO will have the opportunity to consider the evidence submitted to the Board. The Board notes that the RO granted the appellant's claim of entitlement to service connection for headaches (to include neck pain) and assigned an initial evaluation of 10 percent in a rating decision issued in August 2003; the appellant was notified of that action in that same month. Therefore, the issues of entitlement to service connection for headaches and neck pain listed in the March 2000 Supplemental Statement of the Case (SSOC) are moot. The Board also notes that, in September 1999, the appellant's representative submitted a written statement by which a claim of entitlement to service connection for astigmatism was withdrawn. See 38 C.F.R. § 20.204. (Consideration of the issues of entitlement to an initial evaluation in excess of 50 percent for the service-connected psychiatric disability and entitlement to service connection for PTSD is deferred pending completion of the development delineated in the remand below. These issues are addressed in the REMAND portion of the decision below.) FINDINGS OF FACT 1. The appellant underwent right knee surgery for a tibial tubercle avulsion in March 1993, prior to her entry into the United States Air Force. 2. The appellant was treated on a few occasions in service for right knee pain; the pain was acute and transitory. 3. The appellant does not have any right knee pathology that was acquired in service; there was no permanent worsening of the pre-service condition during active military service. 4. The appellant's allergic rhinitis is manifested by complaints of nasal inflammation and swelling; she uses medications. 5. The appellant does not have nasal polyps or greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The veteran does not have right knee disability that is the result of disease or injury incurred in or aggravated by active military service. 38 C.F.R. §§ 101, 106, 1101, 1110, 1111, 1112, 1113, 1137, 1153, 5102, 5103, 5103A, and 5107(a) (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2003). 2. The criteria for an initial compensable rating for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6522 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Right Knee Service connection suggests many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). There must be medical evidence of a nexus relating an inservice event, disease, or injury to current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. Certain chronic disabilities, including arthritis, may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). An increase in the severity of a preexisting condition, as distinguished from the mere recurrence of manifestations of the pre-service condition, is required to establish service connection for a preexisting injury or disease on the basis of aggravation. Evidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone or without more, does not satisfy the level of proof required of a non- combat appellant to establish an increase in disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). The United States Court of Appeals for Veterans Claims (Court) has held that, in cases where a condition is properly found to have preexisted service, the Board, in considering the pertinent statutory and regulatory framework governing the presumption of aggravation, must determine: (1) Whether there was a worsening of the disorder during service; and (2) if so, whether there was clear and unmistakable evidence that the increase in severity was due to the natural progress of the disease. Crowe v. Brown, 7 Vet. App. 238 (1995). The appellant testified during her March 2004 Travel Board hearing that her service medical records demonstrated physical therapy treatment for her right knee. She indicated that she did not have any other statement to make regarding the right knee injury. See Hearing Transcript pp. 2-3. Review of the appellant's service medical records reveals that she underwent surgery in March 1993 for the open reduction and internal fixation of a tibia fracture. In May 1993, the appellant had her final check and demonstrated an excellent range of motion. In December 1994, in connection with her entry into service, the appellant underwent an orthopedic consultation; physical examination revealed a full range of motion and stable ligaments. The assessment was normal knee with no limitation. In June 1995, the appellant complained of right knee pain of one month duration. The clinical assessment was right PFA secondary to old injury. Three weeks later, the assessment was knee pain secondary to old trauma. In October 1995, the appellant sought treatment for complaints of pain in her knee after running. She demonstrated full range of motion and no crepitus on physical examination. She had 1+ varus instability. The clinical assessment was anterior cruciate ligament laxity secondary to prior tibial tubercle avulsion and moderate patellar tendonitis. In July 1997, the appellant complained of right knee pain over the previous two months. On physical examination, there was no effusion or ligament laxity. The appellant demonstrated full range of motion. The assessment was patellofemoral pain syndrome versus tendonitis. The next month, the knee pain was noted to have improved with physical therapy and non-steroidal anti-inflammatory drugs (NSAIDs). After service, the appellant underwent a VA medical examination in June 1998. She demonstrated zero to 130 degrees of motion and appeared to have no pain or difficulty folding her right lower leg up underneath her left leg. There did not seem to be any weakness, pain, stiffness or swelling of the joints. The examiner rendered a diagnosis of history of anterior cruciate ligament surgery, right knee, with good function and good range of motion. Review of the appellant's inpatient and outpatient VA treatment records dated between 1998 and 2003 does not reveal any complaints regarding her right knee or any treatment for her right knee. In May 2003, the appellant underwent another VA medical examination; the examiner reviewed the claims file. The appellant said that she was having no problems with her right knee. She reported that her doing yoga was keeping her knee much stronger. On physical examination, there was no effusion. The appellant demonstrated a range of motion of zero to 140 degrees without anterior discomfort. There was no pain with patellar compression or inhibition testing. The knee was stable to varus and valgus stress. There was no medial or lateral joint line tenderness. There was no pain with circumduction maneuvers. There was minimal crepitation with range of motion. The diagnosis was open reduction internal fixation of a proximal tibial fracture in 1993 without complaints of pain, instability or weakness. First of all, the veteran's knee was considered normal at entry, but it is clear from the evidence that she underwent surgery on her knee prior to service. While the appellant experienced right knee symptomatology when she was on active duty, temporary or intermittent flare-ups of a pre-existing injury cannot be considered to be 'aggravation in service' unless the underlying condition as contrasted to symptoms, is worsened. See Browder v. Brown, 5 Vet. App. 268, 271-72 (1993) (citing Hensley v. Brown, 5 Vet. App. 155 (1993)). Treatment with physical therapy and medication resolved the appellant's 1995 and 1997 bouts of right knee pain. The post-service medical evidence does not show any complaints regarding the right knee or treatment for the right knee. In the absence of proof of a current disease or injury, a grant of service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no competent evidence of record of any current pathology attributable to aggravation of the preexisting right knee condition, the Board concludes that the preponderance of the evidence is against the appellant's claim for service connection. The Court has held that "temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Here, since there is no current disability shown, there cannot have been any worsening of the underlying condition. The evidence is clear that there was no worsening of the pre-existing condition. In addition, since no arthritis was clinically demonstrated within one year of the appellant's release from active duty, any arthritis of the right knee may not be presumed to have been incurred in service. The Board is cognizant of the appellant's own statements to the effect that she has a right knee condition that is due to service. However, the evidence does not indicate that she possesses medical expertise. She is not competent to render an opinion on a matter involving medical knowledge, such as diagnosis or causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board has considered the appellant's oral and written testimony, as well as the written statements of her representative, submitted in support of her argument that she has residuals of a right knee injury that was aggravated as a result of her service. To the extent that their statements represent evidence of continuity of symptomatology, without more, the appellant's statements, and those of her representative, are not competent evidence of a diagnosis, nor do they establish a nexus between an acquired pathology and the appellant's military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, such as a diagnosis or opinion as to medical causation or worsening of a condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). The appellant has not shown that she has the requisite competence, and, accordingly, her claim for service connection for the disability of the right knee, status post surgery, must be denied. In order for service connection to be warranted, there must be evidence of a present disability which is attributable to a disease or injury incurred during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Because the totality of the medical and nonmedical evidence of record shows that any currently demonstrated right knee injury residuals cannot be said to be related to service by way of direct incurrence or aggravation of the appellant's pre-May 1995 right knee injury, the Board finds that the claim for entitlement to service connection for a right knee disorder must be denied. The Board finds that the evidence of record is not in equipoise on the question of whether the appellant has any current right knee disorder(s), including arthritis, that should be service connected. Evidence of pre-existence and of the absence of any worsening during service is clear and unmistakable. Since the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). II. Allergic Rhinitis Disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Evidence of the present level of disability is found in the service medical records, in the reports of the VA medical evaluations conducted in June 1998, and May 2003, in the reports of VA treatment rendered between 1998 and 2003, and in the appellant's March 2004 testimony. The appellant is service connected for allergic rhinitis under the provisions of 38 C.F.R. § 4.97. She is assigned a zero percent evaluation under Diagnostic Code 6522. The Board notes that the Court held, in Fenderson v. West, 12 Vet. App. 119 (1999), that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In that regard, the Board notes that the zero percent rating for the allergic rhinitis disability at issue in this case has been in effect since the day service connection was first in effect. The issue before the Board then is taken to include whether there is any basis for staged ratings at any pertinent time, to include whether a compensable rating is currently in order. The appellant testified at her March 2004 Travel Board hearing that no polyps had been found in her nasal passages. She said that mostly the tissues were inflamed and that they would swell such that she could not breathe. The appellant testified that half the time she would have trouble breathing and the other half of time she did not because she used saline rinses and Vicks Vapor Rub. She said that she is not as bothered by allergies as she was in Louisiana and that she took over-the-counter medications. See Hearing Transcript pp. 10-11 and P. 18. Review of the appellant's service medical records reveals that she was assessed with allergic rhinitis with postnasal drip and cough in January 1997. In April 1997, she presented for chronic postnasal drip and a sore scratchy throat. In October 1997, the appellant was prescribed Zyrtec and Nasacort. In January 1998, the appellant demonstrated nasal mucosal edema and pallor. The appellant underwent a VA examination in June 1998; she complained of a sore throat secondary to drainage in her throat. She was noted to have allergic rhinorrhea-type symptoms. Review of the VA outpatient treatment records dated between 1998 and 2003 reveals that the appellant was hospitalized in January 1999 for bipolar disorder; she complained of headaches and denied postnasal drip. On physical examination, her nose and throat were within normal limits. In May 1999, the appellant was noted to have a medical history that included allergic rhinitis. The clinical assessment was rhinitis and she was prescribed a nasal inhaler. In May 2000, the appellant complained of having problems breathing. The appellant underwent a VA medical examination in May 2003; the examiner reviewed the claims file. The appellant reported that she was not currently prescribed any medication for her sinuses and she denied any interference breathing through her nose. She denied purulent discharge and said that she had no problems with dyspnea on exertion. She reported occasional use of nasal saline or a Vicks inhaler two to three times per week. She denied problems with chronic sinusitis. On physical examination, the nares were patent, without polyps. The sinuses were nontender to palpation. The appellant underwent a VA sinus examination in July 2003; the examiner reviewed the claims file. On physical examination of her nose, the appellant's nasal passages were 100 percent patent. The appellant's allergic rhinitis disability has been evaluated under Diagnostic Code 6522. 38 C.F.R. § 4.97. Diagnostic Code 6522 provides that allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation. A 30 percent rating is warranted when there are polyps. In this case, the evidence does not show polyps, or significant obstruction of a nasal passage or other symptoms due to rhinitis to support the assignment of an increased (compensable) evaluation for rhinitis. 38 C.F.R. § 4.14. After comparing the record as a whole with the applicable rating criteria, the Board is compelled to find that there is no basis for a rating in excess of zero percent at any time for the appellant's allergic rhinitis disability. Without a showing of nasal polyps or any obstruction on either side, a compensable rating is not warranted under Diagnostic Code 6522. Thus, the pertinent Diagnostic Code does not provide a basis for a rating in excess of zero percent for the appellant's allergic rhinitis. Accordingly, the rating schedule does not provide a basis for an initial compensable evaluation for the allergic rhinitis given the clinical findings in this case. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, Diagnostic Code 6522. Notwithstanding the above discussion, a rating in excess of the currently assigned zero percent evaluation for the allergic rhinitis disability at issue may be granted when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The Board finds no evidence that the appellant's service- connected disability has presented such an unusual or exceptional disability picture at any time as to require an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b). The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. The Board finds that the schedular evaluation in this case is not inadequate. As discussed above, there are higher ratings for allergic rhinitis disability, but the required manifestations have not been shown in this case. The Board further finds no evidence of an exceptional disability picture in this case. The appellant has not required any hospitalization for her allergic rhinitis and she has not sought other than occasional treatment for this condition. The appellant has not offered any objective evidence of any symptoms due to the allergic rhinitis that would render impractical the application of the regular schedular standards. Consequently, the Board concludes that further consideration of an extraschedular rating is not warranted in this case. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996) (When evaluating an increased rating claim, it is established that the Board may affirm an RO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own.) Because this is an appeal from the initial rating for the allergic rhinitis, the Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this instance, the record does not show disability above zero percent since April 1998, and therefore does not support the assignment of a staged rating. Since the preponderance of the evidence is against an allowance of a compensable evaluation for the appellant's allergic rhinitis under the schedular criteria, the benefit- of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b). See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). III. Veterans Claims Assistance Act of 2000 The Board is aware that, in November 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA). Among other things, this law includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. With few exceptions, the regulations implementing this law are applicable to all claims filed on or after the date of enactment, or filed before the date of enactment and not yet final as of that date. VAOPGCPREC 7-2003. The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). In this case, VA's duties have been fulfilled. VA must notify the veteran of evidence and information necessary to substantiate her claims and inform her whether she or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was notified of the information necessary to substantiate her increased rating claim and her service connection claim. The RO sent the appellant a letter in May 2003 in which she was informed of VA's duty to assist and what kinds of evidence the RO would help obtain. In addition, in the April 1999 Statement of the Case (SOC), the RO informed the appellant about what the evidence had to show to establish entitlement to service connection, as well as what evidence was needed to demonstrate allergic rhinitis symptoms commensurate with a 10 percent evaluation. Therefore, VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 66 Fed. Reg. 45,620, 45,630-31 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(c), (d)). Here, VA arranged for medical examinations. The appellant was informed about VA's duty to assist and what kinds of evidence the RO would help obtain in a letter sent by the RO in May 2003. The appellant did not provide any information to VA concerning treatment records that she wanted the RO to obtain for her that were not obtained. The appellant was given more than one year in which to submit evidence after the RO gave her notification of VA's duty to assist and what kinds of evidence the RO would help obtain. Therefore, there is no unmet duty to assist. After reviewing the record, the Board is satisfied that all relevant facts with respect to the two claims have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit to flowing to the veteran are to be avoided). ORDER Service connection for a right knee disorder is denied. An initial compensable evaluation for allergic rhinitis is denied. REMAND A determination has been made that additional development is necessary with respect to the remaining issues on appeal. Accordingly, further appellate consideration will be deferred and this case is remanded to the RO for action as described below. Review of the evidence of record reveals that the appellant has been in receipt of VA Vocational Rehabilitation services. The appellant's VA Vocational Rehabilitation file should be obtained and all of the records concerning her VA vocational rehabilitation should be associated with the claims file. It also appears that not all of the appellant's VA treatment records have been associated with the claims file. No records dated after July 2003 are of record. Any such VA treatment records should be identified, with assistance of the appellant as necessary, obtained and associated with the claims file. The evidence of record indicates the appellant has applied for Social Security Administration (SSA) disability benefits. However, complete copies of the medical records upon which any disability award/denial was based, as well as any SSA decision and its associated List of Exhibits, have not been made part of the claims file. All of these records should be obtained and associated with the claims file. Review of the evidence of record indicates that records relating to treatment of the appellant's psychiatric disability are not of record. Specifically, the records from Dr. Dean Robinson are not of record. In addition, the appellant has indicated that she wants the records of Dr. Mahoney and Dr. Yu obtained for consideration of her increased rating claim. In regard to the appellant's PTSD claim based on non-combat stressors, the Court has held that "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The VA Adjudication Manual M21-1 (M21-1) provides that the required "credible supporting evidence" of a non- combat stressor "may be obtained from" service records or "other sources." M21-1, part VI, formerly 7.46. With regard to specific claims based upon personal assault, M21-1, part III, 5.14(c), provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. Included among the sources are statements from confidants, such as fellow service members, and records that indicate behavior changes that occurred at the time of the incident that may indicate the occurrence of an in-service stressor. A Court case, Patton v. West, 12 Vet App 272 (1999), has highlighted the importance of the RO following the more particularized requirements delineated in the M21-1 for personal-assault PTSD claims. It is not clear that the RO has achieved the level of development required by the Court's holding in Patton. The RO did contact the appellant's former commanding officer at Barksdale who stated that the appellant's performance had degraded over time and that the appellant had been counseled by a named master sergeant. However, the appellant's complete service personnel files are not of record. In view of the account given by the veteran of the sexual assaults and harassment that purportedly happened in service and of the events that followed, the Board will ask for the RO to attempt to develop the record further as will be explained below. Regardless of whether an in-service stressor is verified, the appellant should also be afforded a VA examination to determine if any PTSD as noted in the claims file is linked to active military service in any way. To ensure that VA has met its duty to assist in developing the facts pertinent to the claims on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), the implementing regulations found at 38 C.F.R. § 3.159 (2003) and any other applicable legal precedent is completed. In particular, the RO should notify the veteran of the information and evidence yet needed to substantiate her remaining claims and of what part of such evidence she should obtain and what part the RO will yet attempt to obtain on her behalf. She should also be told to provide any evidence in her possession pertinent to her claims remaining on appeal. 38 C.F.R. § 3.159 (2003). 2. The RO should take appropriate steps to secure all of the appellant's service personnel records, including her Air Force performance evaluation reports, any reports pertaining to disciplinary actions and all paperwork relating to her discharge. These records should be associated with the claims file. If there are no records, documentation used in making that determination should be included in the claims file. 3. The RO should request from the appellant a comprehensive statement of potential alternative sources for supporting evidence regarding the alleged assaults and harassment during service. The RO inquiry should include possible sources listed in M21-1, part III, 5.14. The appellant should be advised that this information is necessary to obtain supportive evidence of the stressful event(s) and that she must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 4. Thereafter, the RO should request any supporting evidence from alternative sources identified by the appellant. A field examiner should be utilized if a personal interview is deemed necessary to obtain any supporting evidence or if specific records or statements sought cannot otherwise be provided. 5. The RO should obtain the appellant's VA Vocational Rehabilitation records (or legible copies thereof) and associate them with the claims file. 6. The RO should contact the Social Security Administration (SSA) to obtain copies of all of the medical records upon which any decision concerning the appellant's initial or continuing entitlement to benefits was based, as well as any SSA decision with its associated List of Exhibits. All of these records are to be associated with the claims file. 7. The RO should obtain the appellant's relevant medical treatment records from any VA facility identified by the appellant, to the extent not already on file. In particular, the RO should obtain the psychiatric and medical records dated from July 2003 to the present. 8. The RO should contact the appellant to determine the names, addresses, and dates of treatment by any physicians, hospitals or treatment centers (private or government) who provided her with relevant evaluation or treatment for any psychiatric disorder since 1998, not already provided. After obtaining the appropriate signed authorizations from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the claims on appeal. In particular, the records of treatment by Drs. Robinson, Mahoney and Yu should be sought. All correspondence, as well as any medical or treatment records obtained, should be made a part of the claims file. If private treatment is reported and those records are not obtained, the appellant and her representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 9. After completing the above development, the RO then should review the file and prepare a summary including all associated documents and then make a specific determination, in accordance with the provisions of 38 C.F.R. § 3.304(f), with respect to whether the appellant was exposed to a stressor, or stressors, in service, and, if so, the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 10. The RO should then schedule the appellant for a comprehensive examination by a psychiatrist, if available, to determine the nature and etiology of her current psychiatric disorder(s), to determine the historical extent and severity of her service-connected psychiatric disability and to specifically to determine whether PTSD is present, and, if so, whether it is traceable to any in-service stressor(s). The claims file must be made available to and be reviewed by the examiner in conjunction with the requested study. The psychiatrist should conduct an examination with consideration of the criteria for PTSD. The RO must specify for the examiner the stressor or stressors that it has determined are established by the record. The examining psychiatrist, after examination of the appellant and review of her entire medical history, to include in-service and post-service medical reports, should provide an opinion as to the diagnosis and etiology of any psychiatric disorder found. The examiner should also reconcile all psychiatric diagnoses documented in the appellant's records and provide a current psychiatric diagnosis. The psychiatrist should also offer an opinion as to the onset date of the appellant's PTSD, if any. Based on a review of the claims file and the examination findings (or a review of the record alone if the appellant fails to report for the examination), the examiner is requested to offer an opinion regarding the severity of each diagnosed psychiatric disorder and the extent to which each diagnosed psychiatric disorder affects the appellant's ability to work. The examiner should describe how the symptoms of the service-connected psychiatric disability have affected the appellant's social and industrial capacity. If the impairment associated with the service-connected psychiatric disability cannot be distinguished from that caused by any non-service-connected condition, the examiner should so state and explain the reasons for that conclusion. Based upon the review of the record, the psychiatrist should provide a Global Assessment of Functioning (GAF) Score indicating the level of impairment produced by the service-connected psychiatric disability, and any disorders due to the service-connected psychiatric disability or service, for the years from 1998 to the present. It is imperative that the psychiatrist also provide an explanation of the score's meaning. If a diagnosis of PTSD is appropriate, the examiner should specify the credible "stressors" that caused the disorder and the evidence relied upon to establish the existence of the stressor(s). The examiner should also describe which stressor(s) the appellant re-experiences and how she re-experiences them. All necessary special studies or tests including psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory (MMPI) are to be accomplished if deemed necessary. If there are no stressors, or if PTSD is not found, that matter should also be specifically set forth. 11. Upon receipt of the VA examination report, the RO should conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, the RO should refer the report to the VA examiner for corrections or additions. 12. Thereafter, after the completion of any indicated additional development, the RO should consider all of the evidence of record and re-adjudicate the appellant's claims remaining on appeal. If any benefit sought on appeal remains denied, the appellant and her representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. All relevant evidence of record should be addressed. The appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is hereby notified that it is the appellant's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. 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 appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2