92 Decision Citation: BVA 92-05952 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-10 761 ) DATE ) ) ) THE ISSUE Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD) has been submitted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Ms. [redacted] ATTORNEY FOR THE BOARD William L. Pine, Associate Counsel INTRODUCTION The veteran served on active duty from August 1968 to July 1970 and from January 1971 to May 1977. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of December 23, 1985, from the Washington, D.C., Regional Office (VARO). The VARO notified the veteran of the decision and of his appellate rights by a letter dated January 16, 1986. The notice of disagreement was received on March 7, 1986. The statement of the case was issued on April 8, 1986. The substantive appeal was received on April 26, 1986. A supplemental statement of the case (SSOC) was issued on August 20, 1987. The appeal was received at the Board on April 20, 1988. The appellant's representative in this matter, Veterans of Foreign Wars of the United States (VFW), provided an informal hearing presentation on June 30, 1988. The Board remanded the case on August 26, 1988, because the notice of disagreement, substantive appeal and other statements from the appellant showed that the claim actually at issue was service connection for a psychiatric disability, rather than the other issues certified for appeal, for which a statement of the case had not been issued. A SSOC was issued on October 7, 1988, which the veteran responded to in November 1988. In January 1989, the veteran requested a search for additional records. In February 1990 the veteran's representative indicated that certain deficiencies remained in the case which should be corrected before it was returned to BVA. A VAMC examination was conducted in November 1990. There was a rating decision on April 29, 1991. Another SSOC was issued on May 16, 1991. The appeal was received at the Board again on September 30, 1991. A hearing on appeal was held before a section of the Board in Washington, D.C. on January 14, 1992. Specifically withdrawn from consideration were the issues of service connection for tension headaches, hypertension, a right knee condition and residuals of surgery of the left little finger as well as nonservice-connected pension benefits. The sole issue remaining for appellate consideration is that pertaining to an acquired psychiatric disorder. REMAND The Department of Veterans Affairs (VA) has a statutory duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (1991). Under the circumstances of this case, we are of the opinion that additional assistance is required. The veteran has testified to the existence of service, VA and other medical and personnel records that support his claim, and has requested VA's assistance in obtaining those records. Murphy v. Derwinski, U.S. Vet. App. No. 90-107 (Nov. 8, 1990); Jolley v. Derwinski, U.S. Vet. App. No. 89-161 (Oct. 3, 1990). All possible efforts to obtain those records should be undertaken. Schafrath v. Derwinski, U.S. Vet. App. No. 89-114 (Nov. 26, 1991). The appellant testified that he was treated at a VA medical center (VAMC) in West Haven, Connecticut, from 1970 to 1972, at VAMC Washington, D.C., from 1971 to 1973 and by the Prince George's County, Maryland, Health Department from 1973 to 1974. A statement of Dr. N. Menetrez is noted in the statement of the case, but is not of record. Finally, the veteran reported that his records once were, or may have been, filed under VA claims number *************, a search for which might retrieve service and VA medical records not presently of record. A memorandum dated in March 1989 from the Prince George's County Health Department indicated that a search of old records had failed to discover anything specific regarding mental health treatment of the veteran. At his personal hearing before the Board, however, the veteran submitted a photocopy of an initial evaluation at the Prince George's County Health Department in Cheverly, Maryland, on June 15, 1973. Any additional records should be obtained. We note that in this PTSD claim, the service personnel records have not been obtained, nor has there been inquiry of the U.S. Army and Joint Services Environmental Support Group regarding the appellant; the requirements and guidelines in VA manual M21-1 applicable to PTSD claims have not been implemented completely. We feel that a board of psychiatrists should be utilized to resolve the medical picture. As regards development of the case for service connection for PTSD, we note that the veteran has been requested to furnish details of alleged stressful incidents, which information is crucial to a successful effort to assist him. "The duty to assist in not always a one way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, U.S. Vet. App. No. 89-50 (Mar 28, 1991). We note that the instructions of the Board's remand of August 1988 were not implemented. The instant appeal does not arise from the appellant's first claim for service connection for a psychiatric disability generally, or for PTSD specifically. Service connection for a psychiatric disability was initially denied by a rating decision of December 7, 1973. The notice letter of record is undated, hence the rating decision cannot be considered final. Subsequently, a rating decision of May 16, 1980 denied service connection for a psychiatric disability; proper notice dated May 19, 1980, is of record. The initial rating decision denying PTSD was on July 19, 1982, with notice dated August 19, 1982. Thereafter, the veteran made numerous attempts to reopen a claim for service connection for a psychiatric disability, and he was repeatedly informed of the prior denials and the requirement to submit new and material evidence to reopen his claim. Nonetheless, he has never been informed of the definition of new and material evidence, nor of the legal significance of prior final decisions. The remand of August 1988 specified that a SSOC should be issued summarizing all laws and regulations applicable to the veteran's claim. Neither of the SSOCs issued since have included the laws and regulations on finality of prior decision. Incidentally, the SSOC of October 7, 1988, is substantially inaccurate in describing the rating decisions and notice letters of December 1985 through February 1986 as addressing the instant issue; they did not. The SSOC issued pursuant to this remand should fully address the issue of the finality of prior rating decision on service connection for a psychiatric disability, including PTSD. Accordingly, the case is REMANDED to the originating agency for the following: 1. Circularize a search for records filed under claims number ***********; all development listed below should proceed under claims numbers ******* **** and ************. 2. Request treatment records from VAMC West Haven, Connecticut, from 1970 to 1972; VAMC Washington, D.C., from 1971 to 1973; Prince George's County Health Department in 1973 and 1974; and search for the statement of Dr. N. Menetrez noted in the statement of the case of April 1988 and incorporate them into the claims folder. 3. Implement fully the procedures of VA Manual M21-1 50.43: Specifically, obtain the appellant's service personnel records (DA 20 or 201), request information from the veteran regarding stressors and, if the appellant responds, request assistance from the U.S. Army and Joint Services Environmental Support Group (ESG), Bldg. 247, Stop #387, Ft. Belvoir, Virginia 22060. 4. Upon completion, to the extent possible, of the above development, schedule a psychiatric examination by a board of two psychiatrists, with any indicated tests, to establish a complete, multiaxial diagnosis of the appellant. The veteran's claims folder or complete medical file should be made available to the examining physicians; the report should comply with the requirements of 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.125-4.132 and VA manual M21-1 50.43. 5. Readjudicate the claim for service connection for an acquired psychiatric disability including PTSD as a request to reopen a finally denied claim, implementing the two-step analysis set out in Manio v. Derwinski, U.S. Vet. App. No. 90-86 (Feb. 15, 1991). Thereafter, if the claim is not allowed, provide the appellant with a supplemental statement of the case, including summaries of the evidence and the laws and regulations applicable to prior final rating decisions, and a discussion of the application of the laws and regulations to the decision; indicate that the appellant has a reasonable time to respond, and return the case to the Board for further appellate consideration, if appropriate. No action is required of the appellant until he receives further notice. This REMAND is to develop evidence and to ensure due process of law. The Board intimates no opinion as to the final outcome warranted in this case. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 MATTHEW J. GORMLEY, III JACK J. RHEINGOLD, M.D. KENNETH R. ANDREWS, JR. Under 38 U.S.C.A. § 7252 (1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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.