Citation Nr: 0502428 Decision Date: 02/02/05 Archive Date: 02/15/05 DOCKET NO. 03-25 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include depression and post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a disability manifested by chest pain, to include as secondary to a psychiatric disorder. 3. Entitlement to special monthly pension based on being housebound or the need for aid and attendance of another person. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from August 1966 to September 1967, when he was discharged under honourable conditions. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in March 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issues of service connection for a psychiatric disorder, to include depression and PTSD, and for a disability manifested by chest pain, to include as secondary to a psychiatric disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. By a rating decision dated in June 2004, the RO granted the veteran's claim for entitlement to special monthly pension based on the need for aid and attendance, effective March 21, 2003. The veteran has not submitted a notice of disagreement with the effective date assigned. 2. There is no longer a controversy regarding the benefit sought as to the issue of entitlement to special monthly pension. CONCLUSION OF LAW There is no longer an issue of fact or law before the Board pertaining to the claim of entitlement to special monthly pension based on being housebound or the need for aid and attendance of another person. 38 U.S.C.A. §§ 511, 7104, 7105 (West 2002); 38 C.F.R. § 20.101 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Dismissal The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to the veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a). All questions in a matter which under section 511(a) of title 38, United States Code, are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulation. 38 U.S.C.A. § 7104(a). The Board may dismiss any appeal which fails to allege error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. In addition, a Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2004). Withdrawal may be made by the appellant or by his or her authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c) (2004). Concerning the issue of entitlement to special monthly pension, in written correspondence received in November 2002, the veteran requested special monthly pension based on being housebound or the need for aid and attendance of another person. The Board observes that the RO granted entitlement to special monthly pension based on the need for aid and attendance in a June 2004 rating decision, effective March 21, 2003, which is the date of the VA examination showing that the veteran requires the need for aid and attendance of another person. The veteran did not appeal the effective date assigned. As a result, the RO's decision awarding special monthly pension has fully resolved, and thus has rendered moot, the administrative claim on appeal to the Board. Therefore, having resolved the veteran's claim in his favor, there is no longer a question or controversy remaining with respect to entitlement to special monthly pension. 38 C.F.R. § 3.4 (2004). Nor are any exceptions to the mootness doctrine present because the relief sought on appeal, the initial award of special monthly pension, has been accomplished without the need for action by the Board. See, e.g., Thomas v. Brown, 9 Vet. App. 269, 270 (1996); Hudgins v. Brown, 365, 367-68 (1995). 38 U.S.C.A. §§ 511, 7104, 7105; 38 C.F.R. § 20.101. Accordingly, the issue of entitlement to special monthly pension is dismissed. ORDER The appeal concerning entitlement to special monthly pension is dismissed. REMAND The veteran seeks service connection for a psychiatric disorder, to include depression and PTSD, and a disability manifested by chest pains, to include as secondary to a psychiatric disorder. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). The Board has reviewed the record and finds that additional development is necessary before appellate action may be completed the aforementioned issues. In this regard, the Board initially notes that the veteran and his representative submitted additional evidence to the Board in November 2004 including VA treatment records and a lay statement, both of which are pertinent to the issue of entitlement to service connection for PTSD. VA treatment records dated in November 2004 reflect a diagnosis of PTSD, with anxiety and panic attacks, and recurrent depression related to sexual and physical assault the veteran endured in a "motivational unit" in basic training. The lay statement is proffered by the veteran's father, and attests to the father's personal observation of changes in his son's behavior after boot camp, and his memory that his son was found, during active service, to be suffering from depression which required hospital care. The veteran's witness avers that the veteran has not been the same since. This statement establishes continuity of the veteran's symptoms from active service to the present. The veteran has not submitted a waiver of review by the agency of original jurisdiction for this evidence. Applicable VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case unless this procedural right is waived in writing by the appellant. 38 C.F.R. § 20.1304(c) (2004); Disabled Veterans of America v. Secretary of Veterans Affairs (DAV v. Sec'y of VA), 327 F.3d 1339 (Fed. Cir. 2003). Therefore, remand is required for the RO to initially consider this new evidence and, if the claim remains denied, issue a supplemental statement of the case. In addition, as indicated above, recent VA treatment records reflect that the veteran has been diagnosed with PTSD as a result of personal assault the veteran experienced in basic training. However, the RO has not had the opportunity to develop the veteran's claim as one involving personal assault. Moreover, the veteran's service medical and personnel records are incomplete. Significantly, regarding PTSD cases where the veteran asserts personal assault as the in-service stressor, VA has a heightened duty to assist in gathering evidence corroborating the in-service stressors in accordance with the provisions of VA Adjudication Manual M21-1. Patton v. West, 12 Vet. App. 272 (1999). In such cases, M21-1 provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. See M21-1, part III, 5.14(c). As there has been no development of the claim under M21-1, the Board finds that further actions must be undertaken to ensure that the VA's duty to assist the veteran in the development of his claims has been complied with. The veteran reported, and available service personnel and service medical records show, that he was hospitalized in "PSYCH 081" for depressive reaction in July 1967 while assigned to Weapons Company 3rd BN 2nd ITR Camp Pendleton, California. He was discharged to Marine Barracks for separation in September 1967. A copy of a letter sent to the veteran's father, dated in July 1967, states that the veteran was hospitalized at Naval Hospital, Great Lakes, Illinois due to adjustment problems at his previous duty station which were found to be incapacitating. His report of separation reflects that he was discharged under honourable conditions. Attempts to obtain the veteran's service medical records have thus far been to no avail. The National Personnel Records Center (NPRC) responded in November 2002 and September 2003 that it believed the veteran's records had been destroyed in the 1973 fire. However, the Board notes that the RO has not attempted to reconstruct the veteran's records, and that it has not requested hospital records concerning the veteran's treatment. Hospital records were filed in a different location than the individual's service medical records. Finally, the Board notes that the veteran has not been afforded VA examinations to determine the nature, extent, and etiology of his diagnosed PSTD, with anxiety and panic attacks, and recurrent depression and to determine the nature, extent, and etiology of any condition manifested by chest pain. The Board finds it would be helpful to proffer the veteran examinations for his claimed disabilities, including all appropriate clinical testing and review of the claims file-to include all records received from the service department, and VA and non-VA medical treatment records. See 38 C.F.R. § 3.159(c)(4) (2004). The VCAA requires that VA must provide notice that informs the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim, (2) of the information and evidence that VA will seek to provide, and (3) of the information and evidence that the claimant is expected to provide. Furthermore, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); and VAOPGCPREC 7-2004. The Board notes that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in DAV v. Sec'y of VA, supra, invalidated the Board's ability to cure VCAA deficiencies. Therefore a remand is required in this appeal so that additional development may be undertaken in order to fulfill the Department's duty to assist the appellant with his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2004). Accordingly, and to ensure full compliance with due process requirements, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO should request that the veteran again identify all VA and non-VA health care providers who treated him for his claimed disabilities since his discharge from active service in 1967 to the present. Please explain to the veteran that Dr. Paul Stephens, of Winfield, Alabama, responded to the request for records with a statement, but that he did not forward copies of records of treatment accorded the veteran. Furthermore, the appellant should be specifically informed as to what portion of evidence he is required/expected to submit, and which portion of the evidence the VA would attempt to obtain in order to assist the appellant in substantiating his claims, per 38 U.S.C.A. §§ 5103(a), 5103A; Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Charles v. Principi, 16 Vet. App. 370 (2002)). 2. The RO should then obtain the veteran's medical records from all identified health care providers. In particular, the RO should obtain any and all records of treatment accorded the veteran by Dr. Stephens of Winfield, Alabama. In addition, the RO should request copies of any and all inpatient and outpatient records, to include any and all clinical medical records, and copies of any and all mental hygiene records to include any and all individual and group therapy records accorded him at VA Medical Centers (MCs) in Birmingham and Tuscaloosa, Alabama and any other VAMC the veteran may identify, from his discharge in 1967 to the present. The RO should perform any and all follow up required, including to obtain VA and non-VA records that may have been retired to storage. 3. The RO should make another attempt obtain the veteran's service personnel records ("201 file") and service medical records, including clinical records, hospital medical records, and any and all administrative records to include copies of legal and administrative proceedings. If the service medical, hospital, or personnel records are unavailable, the RO should use alternative sources to obtain such records, using the information of record and any additional information the appellant may provide. The RO should specifically request hospital records: ? Concerning treatment of the veteran from any and all medical facilities associated with Camp Pendleton for treatment of the veteran o when he was attached to Weapons Company 3rd BN 2nd ITR, Camp Pendleton on or about July 1967 through September 1967 o at a facility known as "PSYCH 081" in or around July 1967 through September 1967 ? Concerning treatment of the veteran at Naval Hospital, Great Lakes, Illinois in or around July 1967 through September 1967. In particular, the RO should use any and all methods of reconstruction of service records used in fire-related cases and reconstruction from unit morning reports, training records, and unit histories. If necessary, the RO should request that the veteran or his representative provide further information. The RO should consider special follow-up by its military records specialist and/or referral of the case for a formal finding on the unavailability of the service medical or personnel records. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1 Part III, chapter 4, paras. 4.28 and 4.29. The RO should complete any and all follow-up actions referred by NPRC and service departments, including requesting Morning Reports and other such reports which could be used to verify daily personnel actions from NPRC. 4. The RO should send the veteran a development letter asking him to give as comprehensive a statement as possible regarding the stressors he experienced during his active duty service-to include the incidents of sexual and physical assault he experienced while in the motivational unit in basic training, as well as any other incident the veteran identifies as a stressor. Please remind the veteran that it is necessary to give as specific and detailed information about the persons, places, and events involved as possible, including as accurate dates as possible, so as to enable verification of the identified stressors. 5. Offer the veteran an opportunity to procure "buddy statements" from service members who may have witnessed the events he identifies as his stressors or his behavior, overall, during this time. In addition, please explain that he may also obtain statements from individuals including friends or family members to whom he may have confided these events or who may have witnessed changes in his behavior either during his active service or immediately following his discharge from active service. 6. Whether or not the veteran responds to the request to identify his stressors, the RO should make every attempt to verify the veteran's averred inservice stressors, including development under the specialized development procedures proscribed under M21-1, Part III, 5.14(c)(5), for that purpose. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part III, 5.14(c)(5). In addition, the RO should complete any and all follow-up actions referred by NPRC and the service department, including the request for hospital records or personnel records from Camp Pendleton and hospital records from Naval Hospital, Great Lakes, Illinois, unit morning reports, and unit histories. 7. When the above development has been completed, the RO should make arrangements to afford the veteran VA examinations, by the appropriate specialists to determine the nature, extent, and etiology of his claimed psychiatric disability to include depression and PTSD, and a disability manifested by chest pains. All indicated tests and studies should be performed. The claims folder, including all newly obtained evidence and the veteran's service medical records, must be sent to the examiner(s) for review. The examiner(s) should address the following matters: ? Summarize the medical history, including the onset and course, of any manifested psychiatric disability to include depression and PTSD, and any disability manifested by chest pains. ? Describe any current symptoms and manifestations attributed to any manifested psychiatric disability to include depression and PTSD, and any disability manifested by chest pains. ? Complete any diagnostic and clinical tests required and provide diagnoses for any and all neuropsychiatric, cardiovascular, and chest pathology. ? Provide an opinion as to the date of onset and etiology for any neuropsychiatric disorder, to include depression and PTSD, cardiovascular and chest disabilities. In particular, the examiners are requested to provide the following opinions: 1. Is it at least as likely as not that any currently manifested psychiatric disorder to include depression and PTSD is the result of stressors the veteran experienced during active service or, in the alternative, that any currently manifested neuropsychiatric disorder is the result of, or in any way causally related to, the veteran's active service? 2. Is it at least as likely as not that any disability currently manifested by chest pains is the result of any manifested neuropsychiatric disorder or, in the alternative, is in any way causally related to, the veteran's active service? 8. After receipt of any and all newly acquired evidence, the RO should again review the veteran's claims for service connection for a psychiatric disability to include depression and PTSD, and a disability manifested by chest pains, to include as secondary to a psychiatric disorder. If the decision remains in any way adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and with a reasonable period of time within which to respond. The case should thereafter be returned to the Board for further review, as appropriate. The veteran need take no action until he is so informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is reminded that it is his responsibility to appear for any and all scheduled examinations and that failure to do so could result in the denial of his claims. 38 C.F.R. § 3.655 (2004). The Board intimates no opinion as to the ultimate outcome of this case. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs