92 Decision Citation: BVA 92-17388 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-52 872 ) DATE ) ) ) THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder and, if so, whether there is a basis to grant the benefit. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Nickie Athanason-Dymersky, Associate Counsel INTRODUCTION This matter came before the Board of Veterans Appeals (hereinafter Board) on appeal from rating decision of September 9, 1991, from the Department of Veterans Affairs (hereinafter VA), Albuquerque, New Mexico, Regional Office (hereinafter RO). The appellant had active service from January 1969 until May 1972. The notice of disagreement was received on September 19, 1991. The statement of the case was issued on September 25, 1991. The substantive appeal was received on November 7, 1991. The appeal was received at the Board on January 3, 1992, and docketed at the Board on January 8, 1992. The appellant has been represented since June 20, 1991, by AMVETS. That organization submitted written argument to the Board on February 5, 1992. The case is now ready for appellate review. REMAND The appellant's representative in his February 5, 1992, written argument specifically asks that the records of the claimant's unit in Vietnam be located and associated with the claims folder. Also, upon reviewing the evidentiary record, the Board observes that the RO did not follow the guidelines set out in M21-1, Section 50.45, change 475 in considering the appellant's claim for entitlement to service connection for post-traumatic stress disorder (hereinafter PTSD). The Board believes that the RO should develop this claim further following those guidelines. Because of the numerous facilities (especially VA) where the appellant has been treated, the Board believes that there may be missing treatment records which would be necessary in the proper adjudication of this case. The VA has the duty to assist the claimant in the development of facts pertinent to his claim. 38 U.S.C. 5107(a) (1992); 38 C.F.R. 3.103(a). The United States Court of Veterans Appeals (hereinafter court) has held that the duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes obtaining medical records. Littke v. Derwinski, U.S. Vet. App. No. 89-68 (December 6, 1990). The duty to aid the veteran includes obtaining private medical records. Ohland v. Derwinski, U.S. Vet. App. No. 90-251 (February 25, 1991). The statutory duty to assist also specifically encompasses searching records in the possession of the VA. Jolley v. Derwinski, U.S. Vet. App. No. 89-161 (October 3, 1990). The Board also notes that the appellant's representative invokes the use of 38 U.S.C. § 1154 as being applicable in this case. According to the Court, the VA must give consideration to the nature, types, and circumstances of a veteran's service in claims for service connection under the provisions of 38 U.S.C. § 1154. Smith v. Derwinski, U.S. Vet. App. No. 90-635 (January 31, 1992). The Court has also stated that the appellant must be afforded the benefit of all applicable VA laws and regulations, including 38 U.S.C. § 1154. Lehman v. Derwinski, U.S. Vet. App. No. 90-634 (July 1, 1991). In August 1990 when the appellant was examined by a VA psychiatrist, the examiner noted that no records were available. Thus, the Board requests that the RO have the claimant reexamined by a Board of Psychiatrists after they have had the opportunity to review the appellant's entire medical history and records. Finally, the Board notes that the appellant's claim for service connection for PTSD was already denied in a rating action of January 20, 1988. The claimant was notified of the denial on January 29, 1988, along with his appellate rights, and he did not timely appeal. In addition, another rating action dated April 24, 1990, also denied service connection for PTSD. The RO notified the appellant of this determination on May 2, 1990. Although the appellant responded with a notice of disagreement on May 10, 1990, and was issued a statement of the case on June 13, 1990, he did not submit a substantive appeal. Therefore, that decision became final. The Court has established a two-step analysis for cases in which an appellant seeks to reopen a claim, and this analysis is applicable in this case. In Manio v. Derwinski, U.S. Vet. App. No. 90-86 (February 15, 1991), the Court noted that, in cases involving an attempt to reopen a claim, there must be a decision as to whether new and material evidence has been presented. Next, if new and material evidence has been presented, the claim must be evaluated in light of all of the evidence, both old and new. An adverse determination regarding either step is appealable. The case before the Court in Manio involved the finality of a decision of the Board. The case now before the Board involves the finality of a decision of the RO. However, under 38 U.S.C. § 7105(c), unappealed decisions of the RO are final. Accordingly, the provisions of 38 U.S.C. § 5108 are also applicable in unappealed decisions of the RO. Under the circumstances of this case, the Board is of the opinion that additional assistance is required. Therefore, this case is REMANDED to the RO for the following actions: 1. The RO should contact the appellant and request additional details about the stressful events he has set forth in his various statements to the VA which he believes led to the development of his reported PTSD. The RO should then develop the appellant's claim for entitlement to service connection for PTSD under the guidelines set out in M21-1, Section 50.45, change 475. 2. The RO should request assistance from the United States Army and Joint Services Environmental Support Group, Building 247, Stop 387, Fort Belvoir, Virginia 22060, to determine the actions of the 155th Aviation Company (Assault Helicopter), 10th Battalion, 17th Aviation Group, 1st Aviation Brigade, located at Ban Me Thuot, II Corps, RVN, from approximately January 1969 until May 1972. Specifically, the RO should request information regarding participation of any members of that unit in combat and any members killed in action. In addition, please verify if the appellant was shot down in December 1969 and again in May 1970, and whether a door gunner named Kenny Hines died in either crash. Add any information acquired to the claims folder. 3. The RO should review the veteran's claim taking into consideration all applicable VA laws and regulations, including, but not limited to, 38 U.S.C. § 1154 regarding consideration to be accorded time, place, and circumstances of service. 4. The RO should obtain all of the relevant post-service medical records from VA facilities which have not already been requested pertaining to the appellant's psychiatric condition and make them a part of the claims folder. Specifically, the RO should attempt to locate any missing treatment records concerning the appellant's inpatient and outpatient treatment (approximate date(s) in parentheses) at: VAMC Houston, TX (1972-1973); VAMC San Antonio, TX (1975); VAMC Loma Linda, CA (1986); VAMC Palo Alto, CA (1986); VAOPC Sacramento, CA (1986); VAMC Long Beach, CA (1986); VAMC Brentwood, Los Angeles, CA (1986-1987); VAMC Wadsworth, California (1986-1987); VAMC Albuquerque, NM (1989-1990); and VAMC Denver, CO (1991). Once obtained, any new information acquired should be added to the claims folder. 5. The RO should obtain all of the relevant post-service private medical records which have not already been requested pertaining to the appellant's psychiatric condition (both inpatient and outpatient) and make them a part of the claims folder. Specifically, the RO should attempt to locate the treatment records of a private physician (a Dr. Payle) who allegedly treated the claimant from approximately May 1972 until January 1973. The RO should also specifically ask for any medical reports concerning the appellant from Huntsville Prison and New Mexico State Penitentiary on Highway 85 in Los Lunas, NM 87031, as well as the Monroe Methadone Clinic in Albuquerque, NM. Once obtained, all information acquired should be added to the claims folder. 6. The RO should contact the appellant and ask him if there are any other medical facilities or information as to the names and addresses of any physicians (both private and VA) who have treated him psychiatrically, which have not already been obtained pursuant to action paragraphs #4 and #5. Any new sources of treatment named by the appellant should be requested to submit their records of the appellant. 7. The RO should afford the appellant a special examination by a VA Board of Psychiatrists to determine what, if any, acquired psychiatric disorder may be present. All necessary tests and studies should be performed to produce a clear diagnosis of any psychiatric disorder present. Specifically, the examiners should determine if the claimant has PTSD and if its onset was caused by military service. The examiners should be given the opportunity to fully review the claims folder prior to their examination. 8. The RO should consider the appellant's claim in light of the two-step analysis established in Manio v. Derwinski, U.S. Vet. App. No. 90-86 (February 15, 1991). 9. In applying the two-step analysis, the RO should first determine whether there is new and material evidence to warrant reopening the claim. If there is, the claim should be reopened and the RO should determine whether, in light of all of the evidence, both old and new, there is a basis to grant the claim. 10. If a determination regarding either question is adverse to the appellant, he should be provided a supplemental statement of the case that fully addresses the two-step analysis and explains the reasons for the adverse determination. If it is determined that new and material evidence sufficient to reopen the claim has not been presented, the provisions governing such a determination, including 38 U.S.C. § 5108 and 38 C.F.R. § 3.156(a) as modified by Colvin v. Derwinski, U.S. Vet. App. No. 90-196, slip op. at 5 (March 8, 1991), should be given to the appellant. If it is determined that the claim may be reopened, but there is no basis for the grant of the claim, the supplemental statement of the case should include a summary of all pertinent evidence of record, along with the legal criteria governing the reopened claim. 11. The Board notes that the appellant was denied service connection for a gastrointestinal disorder in October 1972. The appellant's representative, in his VA Form 1-646 of December 2, 1991, argues that there was clear and unmistakable error in that denial. The Board is referring to the RO the issue of whether there was clear and unmistakable error in the October 1972 denial of service connection for a gastrointestinal disorder. If denied all the procedures of 38 U.S.C. § 7105 should be followed before that issue is certified to the Board. The appellant and his representative should be given an opportunity to respond to the supplemental statement of the case before the case is returned to the Board for further appellate action, if in order. The purpose of this REMAND is to assure that the appellant is afforded due process of law. No action is required of the appellant until further notice. The Board expresses no opinion, either legal or factual, as to the ultimate determination warranted in this case, pending completion of the requested development. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 E. M. KRENZER C. D. ROMO 38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C. § 7252 (1992), 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.