92 Decision Citation: BVA 92-19923 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-38 548 ) DATE ) ) ) THE ISSUES 1. Increased rating for migraine headaches, currently evaluated 30 percent disabling. 2. Increased rating for dyshidrosis of the fingers, currently evaluated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William L. Pine, Associate Counsel INTRODUCTION The veteran served on active duty from July 1967 to July 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of January 23, 1990, from the Washington, D.C., Regional Office (VARO). The VARO notified the appellant of the decision and of his appellate rights by a letter dated March 8, 1990. The notice of disagreement was received on April 13, 1990; the appellant raised a claim of entitlement to service connection for PTSD in that notice. The appellant raised a claim for service-connection for residuals of exposure to Agent Orange in a statement of May 10, 1990. The statement of the case was issued on July 11, 1990. The substantive appeal was received on September 5, 1990, wherein the appellant continued his claim regarding PTSD. The VARO denied the claim of service connection for PTSD in a rating decision of November 1990, which treated a May 1982 Board decision denying service connection for a nervous condition as final and reopened the claim to consider PTSD. In a letter of July 27, 1991, the VARO responded to communication from the appellant's representative regarding the appellant's intent to appeal the denial of service connection for PTSD, informing him that his notice of disagreement was due by December 12, 1991. The appeal was received at the Board on July 31, 1991. Disabled American Veterans represented the appellant at a hearing on appeal before a Section of the Board sitting at Washington, D.C., on April 10, 1992. The appellant requested that his statement at the hearing be accepted as his appeal of the denial of service connection for PTSD. REMAND The appellant presents a well-grounded claim, 38 U.S.C. § 5107(a) (1992). The Department of Veterans Affairs (VA) has a statutory duty to assist the appellant in the development of facts pertinent to his claim. Id. Under the circumstances of this case, we are of the opinion that additional assistance is required. Schafrath v. Derwinski, 1 Vet.App. 589 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The appellant testified at his hearing about VA inpatient treatment in an alcohol rehabilitation program, emergency room treatment for headaches, and an Agent Orange examination. Those records have not been requested. A private psychiatrist provided a statement in April 1989, offering support documentation, but he was not requested to provide the offered evidence. In July 1980, the appellant averred that his service medical records were incomplete. Although the service medical records in the claims folder include records from the period of time and from the places where the appellant reported treatment, the amount of treatment he has reported suggests that records could yet be outstanding. A request for additional records post-dating the appellant's statement is not of record. The appellant has long maintained that there is a relationship between his headaches and alleged PTSD, both being caused by stresses experienced in Vietnam; he clearly raised his claim related to exposure to Agent Orange prior to transfer of the case to the Board. A liberal reading of a substantive appeal must include issues raised in all documents prior to the Board's decision. EF v. Derwinski, 1 Vet.App. 324, 326 (1991). The claim of service connection for residuals of exposure to Agent Orange was adjudicated in a rating decision of June 1981. The appellant indicated his desire to appeal in an informal presentation to the Board in March 1982, which the Board referred back to the VARO in its decision of May 1982. No further development has occurred, and the development of that appeal is still pending. The Board must act upon issues clearly shown on the record. Payne v. Derwinski, 1 Vet.App. 85, 87 (1990). Issues that are "inextricably intertwined" with other issues on appeal should be considered together to avoid the inefficiency of piecemeal review. Harris v. Derwinski, 1 Vet.App. 180, 182-83 (1991). Where there is an inextricably intertwined issue that remains pending before VA, a decision by the Board on the issue adjudicated will not be considered a final order subject to appeal to the United States Court of Veterans Appeals. Id. at 183. A claim of service connection for PTSD is such an intertwined issue. In light of the long standing contentions of interrelationship between the alleged PTSD and the service-connected headache disorder, and the known intent of the appellant to continue his appeal regarding denial of service connection for PTSD, the failure to file a timely formal notice of disagreement should not be fatal to this claim. The appellant testified at his hearing to his involvement in an incident in Vietnam in which a vehicle he was in was blown up and passengers killed. Further development of that allegation is needed. His service personnel records have not been obtained. He has not been provided a PTSD protocol questionnaire; other of the development prescribed in VA Manual M21-1 50.45 has not been accomplished. The appellant underwent a VA psychiatric examination in April 1990. The examiner reported that he had evaluated the claims file and that no medical records were available. Given that the claims folder contains medical records, we do not know what the examiner actually reviewed, or if he conducted the review of the appellant's medical history required as part of examinations. Whereas development of evidence to verify stressors had not yet been accomplished at the time of the previous psychiatric examination, an examination will have to be undertaken when that development is complete. The VA neurology examination of September 1989 is uninformative about the appellant's service-connected headache disorder. It does not report frequency or severity or amount of functional incapacity due to headaches. Accordingly, the case is REMANDED to the originating agency for the following: 1. Obtain signed authorizations for the release of information from Bruce M. Smoller, M.D. for the period 1989 to the present and request any information he can provide, as per his statement of April 13, 1989. Add any information obtained to the claims folder. 2. Obtain VA outpatient and hospital records from VAMC Washington, D.C., for the period 1990 to the present, including emergency room or other outpatient treatment records, records of appellant's alcohol rehabilitation program, and of an Agent Orange protocol examination, and add them to the claims folder. 3. Request the appellant's service personnel records from the service department. Provide the appellant with a PTSD questionnaire requesting his unit assignment and the names, dates and locations of the alleged hand grenade attack on the jeep and the people involved and any other alleged stressors; if the appellant provides details as requested, request assistance from the United States Army and Joint Services Environmental Support Group (ESG), Bldg. 247, Stop #387, Ft. Belvoir, Virginia 22060, to determine the actions of the reported units during the time reported. Specifically, request information regarding participation of members of that unit in combat and any members wounded or killed in action. Add any information acquired to the claims folder. 4. Schedule the appellant for a VA psychiatric examination, to include psychological testing, to diagnose or rule out PTSD and a VA neurological examination to determine the nature and severity of the veteran's service-connected migraine headache disorder; the examiner should particularly take a detailed history on the frequency and severity of headaches. Provide the examiners with the appellant's claims folder or a copy of the complete medical record. Department of Veterans Affairs, Physician's Guide for Disability Evaluation Examinations 1.12 (1985). The examiners' reports should emphasize the limitation of activity imposed by the disabling condition, viewed in relation to its history, considered from the point of view of the appellant working or seeking work, with a full description of the effects of disability upon the appellant's ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10 (1991). 5. Thereafter, personnel of the originating agency shall readjudicate the claims for increased rating and service connection for PTSD and adjudicate the claim for service connection for residuals of exposure to Agent Orange and determine whether any claim may now be allowed. If not, provide the appellant with an appropriate supplemental statement of the case, indicating that he has a reasonable time to respond, and return the case to the Board for further appellate consideration, if appropriate. Following completion of these actions, the case should be returned to the Board for further appellate consideration, as appropriate. No action is required of the appellant until he receives further notice. This REMAND is to ensure due process of law and to develop evidence. Appellate review of increased evaluation dyshidrosis of the fingers is deferred pending completion of the dictates of this order. The Board intimates no opinion as to the final outcome warranted in this case. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III * (Member temporarily absent) *38 U.S.C. § 7102 (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 this decision 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.