Citation Nr: 0813801 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-21 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of cold injury of the lower extremities. 3. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran served on active duty in the military from August 1976 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. In February 2008, a hearing before the undersigned Veterans Law Judge was held at the RO. A transcript of that hearing is of record. REMAND The veteran contends that he has PTSD as a result of an in- service personal assault. Specifically, he alleges that in 1977 he was assaulted by an officer. One evening he was invited to the officer's house along with his friend (TA). While there the officer commented that he wanted to wrestle the veteran and in doing so the officer assaulted him by inappropriately touching him. Shortly after this incident the officer again tried to assault the veteran but the veteran became uncomfortable and decided to take a cab home. The post-service medical evidence reflects diagnoses of PTSD, major depression and generalized anxiety disorder. Evidence corroborating this alleged incident is not of record, but the record does not reflect that the RO has complied with the development requirements of 38 C.F.R. § 3.304(f)(3) (2007), which are applicable to claims based on in-service personal assaults. Moreover, during the veteran's February 2008 personal hearing he testified that he would attempt to obtain a statement from TA evidencing the personal assault. This evidence has not yet been associated with the claims folder and the veteran is hereby reminded that such evidence should be submitted if it is available. Turing to the veteran's claim for service connection for residuals of cold injuries of both lower extremities, his personnel records reflect that he was present in Korea from January 29 to February 3, 1979. While in Korea his Battalion focused on the maintenance of equipment which was thoroughly checked for the effects of the cold Korean weather. Additional evidence associated with the claims folder includes a statement from A. Flatau, M.D., in which he noted that the veteran's fungal infections could be related to previous cold exposure. The Board finds that further development is required before this claim should be adjudicated; specifically, a VA examination is required. Finally, the Board notes that any records pertaining to treatment of the veteran's cervical spine disability at the VA Medical Center (VAMC) in Tampa, Florida since 2006 should be obtained. Additionally, the veteran reported treatment in 1988 at Watson Clinic in Lakeland, Florida. He also reported that he currently undergoes treatment for his cervical spine disorder by Dr. Blackburn and Dr. Calin. The procurement of potentially pertinent medical records referenced by the veteran is required, particularly given that some of the identified records are in VA's custody. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, DC for the following actions: 1. The veteran should be provided the notice required under 38 C.F.R. § 3.304(f)(3). 2. Then, the RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran, to include any outstanding, pertinent records pertaining to the veteran's treatment at the Tampa VAMC. The records submitted by the veteran or obtained by the RO or the AMC should also include those pertaining to his treatment at Watson Clinic in Lakeland, Florida, and his treatment by Dr. Blackburn and Dr. Calin. If it is unsuccessful in obtaining any pertinent evidence identified by the veteran, it should so inform the veteran and his representative and request them to provide the outstanding evidence. 3. The RO or the AMC should then arrange for a review of the claims folder, to include a review of the veteran's service medical records and personnel records, by an appropriate medical or mental health professional for an opinion as to whether the evidence in the claims folder reflects behavioral changes in service or anything else indicating that a personal assault occurred. 4. If it is determined that the alleged personal assault did occur, the veteran should be afforded a VA examination by a psychiatrist or psychologist to determine the nature and etiology of all currently present acquired psychiatric disorders. The claims folder must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based upon the claims folder review and the examination results, the examiner should identify all currently present acquired psychiatric disorders. The examiner should specifically address whether the veteran has PTSD due to an in-service personal assault. If PTSD due to an in-service personal assault is not diagnosed, the examiner should explain why the veteran does not meet the criteria for this diagnosis. If the veteran is found to have any other acquired psychiatric disorder, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the veteran's period of active duty. The rationale for all opinions expressed must also be provided. 5. The RO or the AMC should arrange for the veteran to be afforded an examination by a physician with appropriate expertise to determine the nature and extent of any current residuals of cold injuries of the lower extremities. Based upon the examination results, review of the veteran's pertinent medical history, and with consideration of sound medical principles, the examiner should proffer an opinion with respect to each currently present abnormality of the lower extremities as to whether there is a 50 percent or better probability that the abnormality is related to the veteran's cold exposure in service. The rationale for all opinions expressed must also be provided. 6. The RO or the AMC should also undertake any other development it determines to be warranted. 7. Then, the RO or the AMC should readjudicate the veteran's claims based on a de novo review of the record. If the benefits sought on appeal are not granted to the veteran's satisfaction, a supplemental statement of the case should be issued, and the veteran and his representative should be afforded the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Shane A. Durkin 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).