Citation Nr: 0434017 Decision Date: 12/28/04 Archive Date: 01/05/05 DOCKET NO. 94-40 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for headaches, to include service connection secondary to service-connected residuals of fracture of the left zygomaticomaxillary compound and left zygomatic arch. 3. Entitlement to an increased evaluation for residuals of fracture of the left zygomaticomaxillary compound and left zygomatic arch, currently rated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from November 1966 to February 1974. The matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision dated in December 1992 in which the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for post-traumatic stress disorder and headaches. The RO also granted service connection for residuals of fracture of the left zygomaticomaxillary compound and left zygomatic arch and assigned a noncompensable evaluation for that disability, effective in March 1992. The veteran subsequently perfected an appeal of that decision, disagreeing with the denial of service connection for post-traumatic stress disorder and headaches and the rating assigned for his jaw disability. Additionally, a hearing was scheduled before a member of the Board in Washington, D.C., in January 1998, per the veteran's request; however, he failed to report for that hearing. The Board remanded the case for additional development in April 1998. In a decision of May 2004, the RO increased the rating for the residuals of fracture of the left zygomaticomaxillary compound and left zygomatic arch from noncompensable to 10 percent disabling. The issue is still considered to be on appeal as the veteran has not withdrawn it. A claimant will generally be presumed in such cases to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). The claim for service connection for post-traumatic stress disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All evidence necessary for review of the issues on appeal has been obtained, and the VA has satisfied the duty to notify the veteran of the law and regulations applicable to the claims, the evidence necessary to substantiate the claims, and what evidence was to be provided by the veteran and what evidence the VA would attempt to obtain on his behalf. 2. The veteran's current headaches are not related to service and were not caused or aggravated by a service- connected disability such as the fracture of the left zygomaticomaxillary compound and left zygomatic arch. 3. The residuals of fracture of the left zygomaticomaxillary compound and left zygomatic arch are productive of pain and slight limitation of motion, but have not resulted in limitation of the inter-incisal range to between 21 to 30 mm. CONCLUSIONS OF LAW 1. Chronic headaches were not incurred in or aggravated by service and are not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.310 (2003). 2. The criteria for a rating higher than 10 percent rating for residuals of fracture of the left zygomaticomaxillary compound and left zygomatic arch are not met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.59, 4.150, Diagnostic Code 9905 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duty to Assist During the pendency of this appeal, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). The Act is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The new law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims. First, the VA has a duty to notify the claimant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103. Second, the VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. The VA has promulgated revised regulations to implement these changes in the law. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. The Board finds that the VA's duties under the law and recently revised implementing regulations have been fulfilled. The veteran was provided adequate notice as to the evidence needed to substantiate his claims. The Board concludes the discussions in the rating decision, the statement of the case (SOC), the supplemental statements of the case (SSOC) and letters sent to the veteran informed him of the information and evidence needed to substantiate the claims and complied with the VA's notification requirements. The communications, such as a letter dated in September 2003, provided the veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letter also effectively advised him to submit any evidence which he had. In addition, the SOC and SSOCs included summaries of the evidence which had been obtained and considered. The SOC and SSOCs also included the requirements which must be met to establish service connection or to warrant a higher rating. The basic elements for establishing service connection or an increased rating have remained unchanged despite the change in the law with respect to duty to assist and notification requirements. The Board also notes that the SSOC of May 2004 discussed the VA's duties under the VCAA. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board has noted that in Pelegrini v. Principi, 18 Vet. 112 (2004) (Pelegrini II, which replaced the opinion in Pelegrini v. Principi, 17 Vet. App. 412 (2004) (Pelegrini I)), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice must be provided to a claimant before the "initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." A VCAA notice was not provided to the appellant before the RO decision regarding his claim for benefits. However, the original RO decision on the issues on appeal was entered before the enactment of VCAA. Obviously, VA could not have informed the appellant of law that did not yet exist. Moreover, in Pelegrini II, the Court also made it clear that where, as in this case, notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice complying with the pre-decision timing requirement because an initial RO decision had already occurred. In addition, the Court acknowledged that the Secretary could show that the lack of a pre-AOJ decision notice was not prejudicial to the appellant. The Court noted that the doctrine of harmless error is to be used when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached. See also 38 U.S.C. § 7261(b)(2); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (There is no implicit exemption for the notice requirements contained in 38 U.S.C. § 5103(a) from the general statutory command set forth in section 7261(b)(2) that the Veterans Claims Court shall "take due account of the rule of prejudicial error.") In the present case, the Board finds that there was no prejudice to the appellant. The Court in Pelegrini II noted that such requirement did not render a rating decision promulgated prior to providing the appellant full VCAA notice void ab initio, which in turn would nullify the notice of disagreement and substantive appeal filed by the appellant. In other words, Pelegrini II specifically noted that there was no requirement that the entire rating process be reinitiated from the very beginning. Rather, the claimant should be provided VCAA notice and an appropriate amount of time to respond and proper subsequent VA process. That is what was done in the present case. The appellant was given the VCAA notice letter in September 2003 and was given an ample opportunity to respond. Therefore, to decide the appeal would not be prejudicial error. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The veteran has had a hearing. All available relevant evidence identified by the veteran was obtained and considered. The claims file contains his VA and private medical treatment records. The veteran has been afforded disability evaluation examinations by the VA. A copy of a decision granting benefits by the Social Security Administration is of record. The Board does not know of any additional relevant evidence which has not been obtained. The RO attempted to obtain additional records from the Social Security Administration, but that organization reported in February 2004 that such records had been destroyed. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claims. Therefore, no further assistance to the veteran with the development of evidence is required. In the circumstances of this case, another remand to have the RO take additional action under the new Act and implementing regulations 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 the 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 the VA with no benefit flowing to the veteran are to be avoided). The VA has satisfied its obligation to notify and assist the veteran in this case. Further development and further expending of the VA's resources is not warranted. I. Entitlement To Service Connection For Headaches, To Include Service Connection Secondary To Service-Connected Residuals Of Fracture Of The Left Zygomaticomaxillary Compound And Left Zygomatic Arch. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. If a chronic disorder such as an organic disease of the nervous system is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a). This regulation has been interpreted by the United States Court of Veterans Appeals (Court) to allow service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under Sec. 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The veteran contends that he developed headaches as a result of the head injury which occurred in service, and secondary to his service-connected fracture of the left zygomaticomaxillary compound and left zygomatic arch. The veteran's service medical records contain several references to headaches. However, the complaints were attributed on various occasions to various causes, including tension, sinusitis and head injuries, and do not reflect a pattern indicative of a chronic disorder. A service medical record dated in October 1967 shows that the veteran reported having a headache that was frontal and was aggravated by motion. He indicated that guys in the barracks had been making noise. On examination, he was tender in the frontal sinuses. The impression was sinus headache versus tension headache. A record dated two days later indicates that the veteran gave a history of being harassed by guys in the barracks and said that his headache was back. A record dated in November 1967 shows that the veteran reported frontal headaches followed by episodes of "distant vision" and numbness in the face and down the arm. A subsequent psychiatric record indicates that his headaches were thought to be functional in origin. The Board notes that these complaints were prior to the head injuries which the veteran now cites as the cause of his headaches. A record dated in March 1969 reflects treatment for a mild concussion after being struck and robbed. An entry dated in February 1972 shows that the veteran complained of sinus drainage and a bad headache. It was noted that he had a head injury three weeks earlier. Actifed and aspirin were prescribed. A record dated in March 1972 shows that the veteran was injured in a collision after driving on the wrong side of the road. The diagnoses included cannot rule out concussion. A record dated later in March 1972 reflects that he complained of a headache since the auto accident. A record dated in June 1972 shows that the veteran was struck in the head and face by the fist of an unknown assailant. The veteran has already established service connection for fractures of the left zygomaticomaxillary compound and the left zygomatic arch based on this incident. The report of medical history given by the veteran in December 1973 for the purpose of his discharge shows that he denied having frequent or severe headaches. The report of a medical examination conducted at that time shows that clinical evaluation was normal in all areas. A service record dated in January 1974 reflects that the veteran's chief complaint was chronic alcoholism with a history of drinking five cases of beer a week. It was also noted that he had a history of a "skull fracture" and frequent headaches. The discharge diagnosis, however, did not pertain to headaches. The Board finds that the in service complaints were attributed on various occasions to various causes, including tension, sinusitis and head injuries, and do not reflect a pattern indicative of a chronic disorder. In addition, there is no competent basis for concluding that the complaints noted in service are related to any current headaches. There is no evidence of continuity of symptomatology since service. A VA hospital record dated in July 1980 shows treatment for alcohol addiction and dental problems, but does not contain any mention of headaches. The earliest post-service medical record containing any mention of the veteran's headaches is dated many years after the veteran's separation from service. A VA neurology record dated in December 1980 reflects that the veteran gave a history of trauma on the left side of the face in 1972 and intermittent episodes of numbness of the left side of the face with accompanying vision loss. He also said that this was occasionally followed by a headache. Similarly, a VA record dated in May 1992 contains a diagnosis of headaches etiology history of fractured jaw 1970. However, the fact that the veteran's own account of the etiology of his disability was recorded in his medical records is not sufficient to support the claim. It appears that the treating physicians were just recording the history given by the veteran. In LeShore v. Brown, 8 Vet. App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. A VA medical record dated in June 1992 reflects that the veteran reported that he was disabled with headaches for 21 years. It was noted that he appeared intoxicated, but he denied having a problem. He was referred to alcoholics anonymous. A VA record dated in August 1993 reflects that the veteran complained of episodes of blindness, facial numbness and headaches since 1972. A VA neurologist concluded, however, that there was no neurological explanation for the patient's symptoms on examination. A VA hospital summary dated in June 1995 reflects treatment for alcohol intoxication and status post head injury. It was noted that in August 1994 he sustained a head injury where he was hit in the back of the head and his ears were bleeding. A VA treatment record dated in February 1997 reflects that the veteran was seen for a complaint of a severe headache. However, it was noted that he had sustained a head injury an hour earlier. The diagnostic impressions were head trauma and ETOH intoxication. The report of a neurological disorders examination conducted by the VA in May 2004 shows that the veteran's claims files were reviewed. It was noted that the service medical records reflected a motor vehicle accident with an overnight stay in the emergency room without prolonged hospitalization. The veteran, however, stated that as a result of the accident he was amnesic for a period of seven days. The examiner noted that there was no documentation of this in the claims file. The veteran also stated that he started having severe headaches after the motor vehicle accident. The examiner noted, however that there was documentation of similar headaches dating back to prior to that accident. When asked about headaches prior to his entering the military service, the veteran stated that he would get headaches but they would be relieved with just Tylenol and rest, and were not of the severity that he experienced now. The examiner also noted that there was a long history of alcohol and drug use. It was noted that the veteran was on Social Security disability, but also reported that he had just recently in the past three weeks been employed by his brother who was the supervisor for maintenance of a cemetery. Following neurologic examination, the impression was migraine with aura. The examiner again noted the veteran's own history of starting to develop these headaches while in the military service; however, the examiner concluded that the exact cause of these headaches could not be specifically determined. The examiner noted that there were many factors that may contribute to the headaches, including his use of alcohol and drugs and the documentation of multiple head traumas. Significantly, the doctor's statement that the veteran's service-connected disorder "may contribute" to his headaches does not provide an adequate basis for granting service connection. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting the veteran's death was not sufficient to support a claim); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (holding that a general and inconclusive statement about the possibility of a link was not sufficient); and Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure). The Board has noted that the veteran presented testimony during a hearing held in April 1993 which was to the effect that he had headaches that were related to his service- connected head injury. Significantly, however, the Court has held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). In summary, the Board finds that the veteran's current headaches are not related to service or to a service- connected disability such as the fracture of the left zygomaticomaxillary compound and left zygomatic arch. The veteran has not presented any competent evidence linking any current headache disorder with service or a service-connected disability. The only competent medical opinions are to the effect that the cause of the headaches cannot be determined. Accordingly, the Board concludes that chronic headaches were not incurred in or aggravated by service and are not proximately due to or the result of a service-connected disability. II. Entitlement To An Increased (Compensable) Evaluation For Residuals Of Fracture Of The Left Zygomaticomaxillary Compound And Left Zygomatic Arch. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The Board notes that TMJ may be rated under 38 C.F.R. § 4.150, Diagnostic Code 9905 based on the extent to which the disorder limits motion of temporomandibular articulation. A 10 percent rating may be assigned if the range of lateral excursion is from 0 to 4 mm. A 10 percent rating may also be assigned when the inter-incisal range is between 31 to 40 mm. A 20 percent rating is warranted when the inter-incisal range is between 21 to 30 mm. A 30 percent rating is warranted if the inter-incisal range is from 11 to 20 mm. A 40 percent rating is warranted when the inter-incisal range is between 0 and 10 mm. A previous version of Diagnostic Code 9905 had imposed a less favorable standard. Therefore, the Board will apply the current rating criteria. The Court has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation which is due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. See 38 C.F.R. § 4.59. The Board has noted that the veteran presented testimony during a hearing held in April 1993. He indicated that as a result of the disorder, he could not open his mouth wide enough for a double decker sandwich. He also indicated that he had limited ability to move his jaw to the right and the left. He said that yawning caused pain in the left ear drum. The report of a dental and oral examination conducted by the VA in February 2004 shows that the veteran reported a history of an injury to the left side of his face in service. He said that his jaw was wired shut for six months, and that when the fixation was removed, he had limited opening with pain. His current complaints were of restricted opening, difficulty eating, and poor teeth due to inability to accomplish home hygiene measures. The veteran said that the left side was "hanging-up" and that it locked. On examination, the veteran reported having pain which was 8 on a scale of 10 with movement. Palpation revealed moderate left preauricular pain to palpation. The left masseter muscle was moderately tender to palpation. The left temporalis muscle was also mildly tender to palpation. All other muscles of mastication were grossly within normal limits to palpation. It was noted that the veteran was missing numerous teeth, but that prosthetic replacement would provide adequate function. The ranges of motion were maximum opening of 35 mm with a mild pop at maximum opening and 6/10 pain; protrusive movement of 10 mm with no pop and 6/10 pain; right lateral movement of 5 mm with no pop and 8/10 pain; and left lateral movement of 10 mm with no pop and 4/10 pain on the right. It was noted that there was mild flattening of the head of the condyle bilaterally. An X-ray reportedly showed moderate to severe generalized periodontal bone loss. In assessing the impairment, the examiner stated that the veteran had mildly limited range of motion. The range of motion appeared to be adequate for home care measures, and that the poor state of dentition appeared to be from neglect rather than excessive limitations to access. The examiner commented that the veteran did appear to have discomfort on opening which would not be an unreasonable sequelae of his described trauma. A mild pain noted in the left TMJ and the left muscles of mastication displayed varying degrees of tenderness to palpation. After considering all of the relevant evidence, the Board finds that the mandible fracture does not limit motion of the jaw to a degree that would support a higher rating. The fractures of the left zygomaticomaxillary compound and zygomatic arch are productive of pain and slight limitation of motion, but have not resulted in limitation of the inter- incisal range to between 21 to 30 mm. On examination it was specifically noted that he could open to 35 mm. Although he had pain at the end of the range of movement, it did not prevent him from accomplishing that motion. Accordingly, the Board concludes that the criteria for a disability rating higher than 10 percent rating for fractures of the left zygomaticomaxillary compound and zygomatic arch are not met. ORDER 1. Entitlement to service connection for headaches, to include service connection secondary to service-connected residuals of fracture of the left zygomaticomaxillary compound and left zygomatic arch is denied. 2. An increased evaluation for residuals of fracture of the left zygomaticomaxillary compound and left zygomatic arch, currently rated as 10 percent disabling, is denied. REMAND The veteran has alleged that he developed PTSD as a result of a sexual assault which occurred in service. The Court has stressed the necessity of complete development of the evidence if a PTSD claim is based on an alleged personal assault. See Patton v. West, 12 Vet. App. 272, 276-78 (1999). In Patton, 12 Vet. App. at 278, the Court pointed out that there are special evidentiary development procedures for PTSD claims based on personal assault contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The general MANUAL M21-1 provisions on PTSD claims in 5.14 require: "In cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence." MANUAL M21-1, Part III, 5.14(b)(3). As to personal-assault PTSD claims, more particularized requirements are established regarding the development of "alternative sources" of information as service records "may be devoid of evidence because many victims of personal assault...do not file official reports either with military or civilian authorities." MANUAL M21-1, Part III, 5.14(c)(5). Further, the provisions of subparagraphs (8) and (9) indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor", that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes", and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court stated that when read together subparagraphs (8) and (9) show that in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant producing corroborating evidence of an in-service stressor. The Board notes that the manual also provides that the PTSD stressor development letter used by ROs to solicit details concerning the in- service stressful incident may be inappropriate for this type of PTSD claim. Therefore, if the stressful incident is a personal assault, the RO is to use a special letter developed for this type of claim. The Board finds that, in this case, VA's duty to assist in the development of the claim has been not satisfied. The RO needs to complete its assistance to the veteran by following the procedures outlined in M21-1, such as sending the veteran the appropriate letter for developing secondary or alternative evidence. The RO should also make a determination as to whether secondary evidence may need interpretation by a clinician in order to determine whether any such evidence tends to confirm the occurrence of the claimed stressor. Accordingly, this case is REMANDED for the following: 1. The RO should complete development of the evidence required for a PTSD claim based on an alleged personal assault, to include sending the veteran the appropriate letter for developing secondary or alternative evidence. The RO should also make a determination as to whether secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). 2. If the benefit sought on appeal remains denied, the appellant and the appellant's representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if otherwise in order. The appellant need take no action unless otherwise notified. 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). 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). ______________________________________________ JEFF MARTIN 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