Citation Nr: 0811043 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 07-07 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for cervical osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from July 1943 to December 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 decision of the Providence , Rhode Island , Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2008, a Veterans Law Judge from the Board granted the veteran's motion to advance the case on the Board's docket (AOD). For the reasons outlined below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington , D.C. Consistent with the instructions below, VA will notify the veteran of any further action required on his part. REMAND The veteran alleges that he has PTSD as a direct result of his exposure to an explosion at Norfolk Naval Air Base in September 1943. Specifically, it is maintained that in September 1943, an air station ordnance truck exploded while transporting depth charges on the taxiway between the air station and the operating base. The explosion is known to have caused massive damage, killed approximately 40 people, and injured hundreds more. The veteran claims that he lost a companion in the blast, and injured his neck as a result of the concussive force of the blast and falling debris. See December 2005 letter from representative. He also claims that his inservice stressors include recovering dead bodies out of the ocean while aboard the USS Arkansas after the D- Day invasion. Id. The medical record contains medical evidence/opinions which address whether the veteran has PTSD related to an in-service stressor. A May 2006 PTSD examination report shows that the veteran indicated that he had never previously received treatment for any psychiatric-related problem. While a May 2006 Deferred Rating Decision determined that the event at Norfolk Naval Air Base had been verified the examiner found only symptoms of PTSD, and did not diagnose PTSD. Unfortunately, the psychologist failed to conduct any pertinent psychological studies before concluding that a diagnosis of PTSD was not appropriate. The Board finds, however, that psychological studies should be performed, and that the appellant should be seen by both a psychologist as well as a psychiatrist. As noted, the veteran also alleges entitlement to service connection for a cervical disorder. He claims that he injured his back in the course of the 1943 explosion. See December 2005 letter from representative. Review of the veteran's service medical records shows that mild upper dorsal scoliosis was diagnosed at his July 1943 entrance examination. His service separation examination in 1945 showed no back-related problems. The veteran claims that he was treated by a corpsman at the explosion site for a back injury. He did not indicate that he received any additional treatment. See letter received by VA in May 2006. In support of his claim, however, the appellant has submitted an August 2006 letter from R.V. Lewis, M.D., a private physician, who noted that he had treated the veteran since 1964. He added that the veteran "had an extensive record which is not really amenable to copying." Dr. Lewis mentioned that the veteran had intermittently complained of cervical pain throughout the years in which he treated him, and that the veteran had told him he injured his back as a result of an explosion. Dr. Lewis opined that the veteran's story was "completely compliant" with a chronicity of a painful cervical spine. Dr. Lewis also found that a February 1969 X-ray confirmed the veteran's longstanding painful neck with cervical spondylosis and degenerative disc disease; this too was consistent with the veteran's reported in-service injury. The Board notes that Dr. Lewis was contacted in January 2006 VA correspondence and requested to supply VA with copies of his treatment records to include findings and diagnoses for treatment the veteran had received. Review of the veteran's claim file contains but a single medical record pertaining to a 2005 computerized tomography scan which addresses the treatment provided the veteran by Dr. Lewis. Hence, in light of the August 2006 correspondence it is evident that there are pertinent medical records that have yet to be associated with the claims file. As these private medical records may contain critical information, 38 C.F.R. § 3.159(c) mandates that VA assist in obtaining such records. This assistance includes directly informing the veteran that he should directly contact Dr. Lewis and attempt to secure the records himself for VA's consideration. In light of the August 2006 opinion as to the etiology of the veteran's cervical disorder a remand to obtain a medical opinion addressing this matter is nevertheless needed. 38 U.S.C.A. § 5103A(d) (West 2002). The VCAA requires that VA afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on the claim. Id. When medical evidence is not adequate, VA must supplement the record by seeking an advisory opinion or ordering another examination. 38 C.F.R. § 3.159(c)(4)(i). See Littke v. Derwinski, 1 Vet. App. 90 (1991). Finally, the current file includes various large x-ray, computed tomography, and magnetic resonance imaging films. While the Board understands the veteran's belief that these would assist his claim, he should understand that the Board is not questioning the existence of a spinal disorder. Rather, the question over which the Board may exercise jurisdiction is whether a cervical disorder was incurred or aggravated while on active duty. Hence, the films are not necessary for appellate review. Indeed, even if the Board were to immediately service connect a cervical disorder the films would be unnecessary for appellate review as any rating assigned would be based on the nature and extent of any limitation of motion affecting the joint. Accordingly, the films should be returned to the veteran. Accordingly, the case is REMANDED for the following action: 1. The RO should once again attempt to obtain copies of all treatment records pertaining to care received by Dr. R.V. Lewis. If these records cannot be obtained, the attempt to obtain them should be documented for the record, and the veteran informed in writing. The veteran is to be advised that it would be to his benefit to secure the records himself for VA's consideration. 2. The RO should arrange for the veteran to be afforded a VA psychiatric examination by both a psychiatrist and a psychologist to determine whether the diagnostic criteria for PTSD are satisfied. With this request, the RO should provide the examiner with a list of the stressors that have been verified. The claims folder must be provided to the examiners for review. If PTSD is diagnosed the examiners must opine whether the veteran has PTSD related to his military service and whether a diagnosis of PTSD is supportable solely by independently verified inservice stressor(s). If the examiners differ in their diagnosis, they must explain their differences. The examiners may not rely upon any unverified stressor in determining whether the veteran's in-service experiences were of sufficient severity to support a diagnosis of PTSD. The examiners should provide detailed rationale, with specific references to the record, for his/her opinion. All special studies or tests, to include the Minnesota Multiphasic Personality Inventory-2, must be accomplished. 3. The veteran should be scheduled for an orthopedic examination in order to determine the etiology of any cervical osteoarthritis. Send the claims folder to the examiner for review in conjunction with the examination. After a review of the record and examination of the veteran, the examining physician must state whether it is at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed cervical disorder, to include arthritis, is related to service. The examiner must address the August 2006 statement offered by Dr. Lewis. The rationale for all opinions offered must be clearly indicated by the examining physician. 4. The veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be taken. 6. The x-ray, CT and MRI films should be returned to the veteran for his safekeeping. 7. Thereafter, and following any other indicated development, the RO should prepare a new rating decision and readjudicate the appealed issues. If the appeal is to any extent denied, the veteran and his representative should be provided a supplemental statement of the case which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matters the Board have remanded to the RO. 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ DEREK R. BROWN 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) (2007).