Citation Nr: 0518279 Decision Date: 07/05/05 Archive Date: 07/14/05 DOCKET NO. 97-07 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active military duty from November 1982 to February 1985. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in March 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In a December 2003 decision, the Board reopened the previously denied claim for entitlement to service connection for an acquired psychiatric disorder, and remanded the claim for further development. In the following remand, the Board requested that certain records be obtained, namely, Department of Army (DA) Form 20 records on two service members. It was determined that to request these records and associate them with the veteran's claims file, would be a violation of the Privacy Act. See generally, 5 U.S.C.A. § 522. Accordingly, the remand was VACATED. The veteran testified in June 2003 before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearings pursuant to 38 U.S.C.A. § 7102(b) (West 2002) and who will participate in this decision. A copy of the hearing transcript issued following the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The veteran seeks service connection for a psychiatric disorder, to include PTSD and schizophrenia, which he avers is the result of personal assault suffered during his active service. 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 have submitted additional evidence to the Board since the June 2003 hearing. In addition, the veteran has notified the RO of additional medical evidence, some of which the RO has already obtained. 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). VA treatment records recently received reflect that the veteran has been diagnosed with PTSD with depression and psychosis, and that a history of military sexual assault has been noted as recently as January 2005. However, the RO has not had the opportunity to develop the veteran's claim as one involving personal assault. 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 development of the claim under M21-1 has not been completed, 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 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 review the claims file and ensure that it has obtained records from all VA and non-VA health care providers the veteran has identified. 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)). 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. 2. The RO should ensure that it has the veteran's complete 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, evaluations, citations for awards, etc. 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. If necessary, the RO should use any and all methods of reconstruction of service records used in fire-related cases. 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. 3. 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. 4. Using the veteran's May 2003 stressor statement, his June 2003 testimony, and any other stressor statements of record, 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. 5. 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 PTSD and schizophrenia. 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 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 Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2004).