92 Decision Citation: BVA 92-18658 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-45 787 ) DATE ) ) ) THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disability, to include post-traumatic stress disorder and, if so, whether there is a basis to grant the benefit. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. 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 May 24, 1991, from the Department of Veterans Affairs (hereinafter VA) Winston-Salem, North Carolina, Regional Office (hereinafter RO). The appellant had active service from March 1966 until March 1968. The notice of disagreement was received on June 20, 1991. The statement of the case was issued on August 14, 1991. The substantive appeal was received on September 17, 1991. The appeal was received at the Board on October 15, 1991, and docketed at the Board on October 16, 1991. The appellant has been represented throughout his appeal by the Paralyzed Veterans of America. That organization submitted written argument to the Board on January 30, 1992. The case is now ready for appellate review. REMAND The appellant's representative, in his January 1992, written argument, specifically asks that the RO be requested to follow guidelines set out in M21-1, Part VI, Section 7.46 (March 17, 1992), in considering the appellant's claim for entitlement to service connection for post-traumatic stress disorder (hereinafter PTSD). The representative also specifically requests that the claimant be reexamined by a board of psychiatrists after they have had the opportunity to review the appellant's entire psychiatric history. This is requested because, according to the representative, although two prior VA psychiatric examinations did not identify PTSD, at least three outpatient treatment reports in the claims folder (dated October 23, 1985; March 31, 1986; and April 29, 1989) include diagnoses of "PTSD." Therefore, these varying medical conclusions need to be reconciled. The Board has some evidence that the appellant has recently been treated at the Fayetteville, North Carolina, Vet Center according to a written statement by a readjustment counselor dated May 6, 1991. However, details of the treatment afforded the appellant are not of record. In addition, the representative cites six alleged hospitalizations at the VA Hospital in Fayetteville, North Carolina (including treatment for a "nervous breakdown" in 1968--the year that he was discharged). In addition, the representative refers to eight years of treatment at a "mental health center." The Board believes that there may be missing psychiatric 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 all appropriate medical records. Littke v. Derwinski, 1 Vet.App. 90 (1990). The duty to aid the veteran includes obtaining private medical records. Ohland v. Derwinski, 1 Vet.App. 147 (1991). The statutory duty to assist also specifically encompasses searching records in the possession of the VA. Jolley v. Derwinski, 1 Vet.App. 37 (1990). The appellant's representative invokes the use of 38 C.F.R. § 4.6 (1991) which discusses the element of the weight to be accorded the character of the veteran's service. The Board also notes that, 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, 2 Vet.App. 137 (1992). The Court has specifically stated that the appellant must be afforded the benefit of all applicable VA laws and regulations. Lehman v. Derwinski, 1 Vet.App. 339 (1991). Finally, the Board notes that the appellant's claim for service connection for PTSD has already been denied in its final decision of July 25, 1988. The Court has established a two-step analysis for cases in which an appellant seeks to reopen a claim. This analysis is applicable to this case because the case before the Court in Manio v. Derwinski, 1 Vet.App. 140 (1991), also involves finality of a decision of the Board. In Manio, 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 the evidence, both old and new. An adverse determination regarding either step is appealable. 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, Part VI, Section 7.46 (March 17, 1992). 2. 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 any outpatient) treatment for psychiatric problems at the VA Hospital at Fayetteville, North Carolina, from approximately 1968 until 1974. Once obtained, any new information acquired should be added to the claims folder. 3. 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 the Fayetteville Vet Center (No. 206) at No. 4 Market Square, in Fayetteville, North Carolina 28301. Any notes or other documentation from his initial intake counseling session and his subsequent post-traumatic stress group session conducted on May 6, 1991, should be made a part of the claims folder. Any additional medical documentation available subsequent to those two events should also be added to the claims folder. 4. The RO should contact the appellant and ask him if there is any other information as to the names and addresses of any physicians (both private and VA) who have treated him psychiatrically, which has not already been obtained pursuant to action paragraphs No. 2 and No. 3. Specifically, any documentation regarding the alleged eight years of treatment at a mental health center should be added to the claims folder. Any new sources of treatment named by the appellant should be requested to submit their records for inclusion in the claims folder.. 5. The RO should afford the appellant a special examination by a VA board of three 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 examiner should be given the opportunity to fully review the claims folder prior to their examination. 6. 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 (1992) and 38 C.F.R. § 4.6 (1991). 7. The RO should consider the appellant's claim in light of the two-step analysis established in Manio v Derwinski, 1 Vet.App. 140 (1991). 8. 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. 9. 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 (1992) and 38 C.F.R. § 3.156(a) (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. 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 full 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 G. H. SHUFELT C. D. ROMO (CONTINUED ON NEXT PAGE) 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.