92 Decision Citation: BVA 92-20535 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-37 876 ) DATE ) ) ) THE ISSUES 1. Whether new and material evidence has been submitted so as to reopen a claim for service connection for a psychiatric disorder, to include post-traumatic stress disorder. 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD K. J. Spindler, Counsel INTRODUCTION The veteran is the appellant in this case. He had active military service from March 1966 to March 1968. This case came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an August 1990 rating decision of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA), of which the veteran was promptly mailed notice. The veteran's notice of disagreement was received by the RO in September 1990. In it he requested a personal hearing in connection with his appeal. The RO issued a statement of the case in October 1990. Shortly thereafter in October 1990 the veteran and his witness appeared and testified before a VA hearing officer at the RO. The RO accepted the veteran's testimony at the hearing as his substantive appeal. A transcript of the hearing is on file. Additional medical evidence was subsequently added to the record (the veteran's VA claims folder). The hearing officer issued his decision in December 1990, and the RO issued a supplemental statement of the case in December 1990. Additional medical evidence was subsequently added to the record. In April 1991 the veteran appointed the Disabled American Veterans (DAV) to represent him. Also in April 1991 the denial of service connection for post-traumatic stress disorder was confirmed by the RO in a rating decision. The RO issued another supplemental statement of the case in May 1991. In June 1991 the DAV furnished written argument to the RO. The case was received at the Board in Washington, D.C. in July 1991. It was thereupon forwarded to the DAV, which furnished preliminary written argument to the Board in January 1992. In April 1992 the Board wrote to the veteran and asked him to clarify whether he wished to have a hearing before the Board in Washington, D.C. In June 1992 the Board received the veteran's reply, which was in the negative. REMAND I. Service Connection Benefits Service connection for a psychiatric disorder, variously diagnosed (including as post-traumatic stress disorder), was denied by the RO on several occasions prior to August 1990. The last such occasion before August 1990 was in a December 1985 rating decision, of which the veteran was promptly notified, together with an explanation of his procedural and appellate rights. The veteran did not file a notice of disagreement therewith within one year. Therefore, the denial of service connection for a psychiatric disorder, to include post-traumatic stress disorder, became final on the basis of the evidence of record at the time of the December 1985 rating decision, in the absence of clear and unmistakable error. 38 U.S.C. § 7105(c) (1992); 38 C.F.R. § 3.104(a) (1991). Submission of "new and material" evidence is necessary to reopen the previously disallowed claim. 38 U.S.C. § 5108 (1992); 38 C.F.R. § 3.156(a) (1991). In a June 18, 1990 statement (VA Form 21-4138), at his hearing on appeal in October 1990 (recorded at pages 2-3 and 12-14 of the transcript thereof), and in an interview with the VA Social Work Service on January 14, 1991, the veteran furnished details about inservice stressors to which he attributed the onset of his psychiatric problems. At the hearing the veteran also testified about diagnoses of post-traumatic stress disorder rendered at VA facilities after December 1985. These statements are not implausible and they relate to the legal criteria for the benefit he is seeking, including the requirement that "new and material evidence" be submitted to reopen the December 1985 rating decision. The Board therefore finds that the veteran's statements made in connection with his current request to reopen his claim for service connection for a psychiatric disorder constitute evidence of a "well-grounded" claim, within the meaning of 38 U.S.C. § 5107(a) (1992). However, this is not to say that the Board finds that the contentions constitute "new and material evidence" per se. It is contended, in part, that the RO failed to follow the VA's Adjudication Procedure Manual, M21-1, §50.45, to develop evidence of the veteran's inservice stressors. The Board notes that in a recent decision the United States Court of Veterans Appeals (Court) held that the VA's duty to assist a claimant for service connection for post-traumatic stress disorder, by obtaining "any relevant VA, military or other government records," extended to fulfilling the procedures set forth in §50.45 of M21-1. Sayre v. Derwinski, 2 Vet.App. 224 (1992) (copy attached.) II. Pension Benefits A permanent and total disability rating for pension purposes was denied by the RO in an October 1980 rating decision, of which the veteran was notified in November 1980, together with an explanation of his procedural and appellate rights. He did not file a notice of disagreement therewith within one year. Therefore, the denial of a permanent and total disability rating for pension purposes became final on the basis of the evidence of record at the time of the rating decision, in the absence of clear and unmistakable error. 38 U.S.C. § 7105(c) (1992); 38 C.F.R. § 3.104(a) (1991). Submission of "new and material" evidence is necessary to reopen the previously disallowed claim. 38 U.S.C. § 5108 (1992); 38 C.F.R. § 3.156(a) (1991); Abernathy v. Derwinski, U.S. Vet. App. No. 90-1068 (May 20, 1992). At his hearing on appeal in October 1990 the veteran also testified that he was unable to work and had been found unemployable due to post-traumatic stress disorder. He referenced psychiatric problems for which he received treatment after October 1980. This testimony is not implausible and it relates to the legal criteria for the benefit he is seeking, including the requirement that "new and material evidence" be submitted to reopen the October 1980 rating decision. The Board therefore finds that the veteran's testimony and written contentions constitute evidence of a "well-grounded" claim, within the meaning of 38 U.S.C. § 5107(a) (1992). Relative to the veteran's potential eligibility for nonservice-connected pension benefits, we find it clear that the abundant medical evidence (mostly records of hospitalizations for psychiatric symptoms) which has been added to the record since the October 1980 rating action is both "new" and "material." That is, it contains information about the current severity of his disabilities and, when viewed in the context of all of the evidence, both the old and the new, it establishes a reasonable possibility that it will change the outcome of the case. Colvin v. Derwinski, 1 Vet.App. 171 (1991), at 174. As such, the veteran's claim for pension benefits is found to have been reopened. His entitlement to a permanent and total disability rating for pension purposes must be considered on a de novo basis. Manio v. Derwinski, 1 Vet.App. 140 (1991). The aforementioned August 1990 rating decision is the most recent VA rating decision of record, wherein the veteran's various disabilities are listed and evaluations for them are assigned under the criteria of the VA's Schedule for Rating Disabilities (Rating Schedule). In this rating decision the veteran's disabilities are shown as follows: Major depression, recurrent, with anxiety and complaints of headaches, evaluated as 30 percent disabling under Code 9405 of the Rating Schedule; residuals of fracture, right patella, with degenerative joint disease, evaluated as 10 percent disabling under Code 5257 of the Rating Schedule; "Back condition," evaluated at zero percent under Code 5099-5295 of the Rating Schedule; "Exposure to Agent Orange," evaluated at zero percent under Code 7899-7806 of the Rating Schedule; and internal and external hemorrhoids, evaluated at zero percent under Code 7336 of the Rating Schedule. The combined evaluation for his ratable disabilities was reported to be 40 percent. It was noted that drug addiction and alcohol abuse were disabilities resulting from the veteran's own willful misconduct. III. Development Requested In view of the foregoing evidence and contentions, the Board believes that additional evidence may be helpful prior to rendering a final appellate decision in this case. Additional procedural action by the RO will also be necessary, as a result of several recent decisions of the Court. Consequently, the case is hereby REMANDED to the RO for the following actions: 1.(a) Through his representative, the veteran should be contacted and requested to furnish photocopies of all documentation he may have in his possession to support his statements on the VA Form 21-4138 which he completed on June 18, 1990, to the effect that he was awarded a Bronze Star Medal, a Purple Heart Medal, a Combat Infantryman Badge, and an Army Commendation Medal during his military service. These awards are not recorded in the official military administrative records on file. (b) The veteran should also be requested to furnish a statement containing as detailed information as is possible relative to the dates and locations of the combat-related stressors to which he was exposed while serving in Vietnam, and the names of casualties injured or killed in his vicinity, which he found stressful. In this regard we point out that the name "James Buzzy," which he related on the VA Form 21-4138 on June 18, 1990 (killed by enemy gunfire in late February 1968), is not listed in a guide to the names inscribed at the Vietnam Veterans Memorial in Washington, D.C. There are two apparent discrepancies in the information he has furnished about the incident which occurred on the day he arrived in Vietnam. First, in the June 14, 1990 statement he indicated that it occurred in April 1967, but his official service records show that he arrived in Vietnam on May 12, 1967. Second, at the hearing he was reported to have testified that the incident occurred at "Lang Bian" (probably referring to Long Binh) naval station; but in the January 14, 1991 VA Social Work Service report the veteran is reported to have stated that the incident occurred at "Bien Hoa Airport." Also, in the hearing transcript it is reported that the veteran testified that his base camp was at "Xuyan" (this may be an error of transcription); whereas his official military records indicate he was stationed at Di An Base Camp. 2. After the veteran's above-requested statement about his inservice stressors is received, or if none is received, and after a reasonable amount of time to submit this statement has been afforded, the RO should seek the assistance of the United States Army and Joint Services Environmental Support Group (ESG), Building 247, Stop #387, Ft. Belvoir, Virginia 22060, to attempt to corroborate the specific inservice stressors reported by the veteran. We point out that in addition to the two incidences mentioned in the preceding paragraph, another claimed stressor is shown to have involved the in-air explosion of a helicopter which had just inserted the veteran's team in the field, which reportedly occurred in September or October 1967. He reported this both on his VA Form 21-4138 on June 18, 1990 and to the VA Social Work Service on January 14, 1991. 3. Photocopies of the complete records of psychiatric and medical examinations and treatment of the veteran by the VA after April 2, 1991 should be secured and added to his VA claims folder. 4. A social and industrial survey should be accomplished by the VA to evaluate the veteran's current social and industrial adaptability. 5. Thereafter, a psychiatric examination should be accomplished by a Board of at least two VA psychiatrists to clarify whether the veteran has post-traumatic stress disorder as a result of his military experiences. The examinations should be conducted in accordance with Chapters 14 and 20 of the VA's Physician's Guide for Disability Evaluation Examinations. The diagnostic criteria for post-traumatic stress disorder, as set forth in DSM-III (Revised), should be specifically addressed in the final report of the examination. Further, if the veteran is determined to have post-traumatic stress disorder as a result of his military experiences, the current manifestations thereof should be identified and distinguished to the extent possible from manifestations of any other psychiatric disease he may be found to have, which should also be diagnostically classified. Any specialized study deemed indicated by the examiners should be carried out. The veteran's claims folder must be made available to each examiner prior to the examination, so that each examiner is able to review the available records of the veteran's previous psychiatric treatment and examinations, as well as the official records of his military assignments and any official information received relative to his claimed combat-related stressors, before reaching final diagnostic impressions. 6. If the RO then determines that the December 1985 denial of service connection for a psychiatric disorder has been reopened with "new and material evidence," rating action should be taken to ensure that the issue on appeal is considered de novo (on the basis of the new evidence, together with the evidence already of record on December 1985). If the decision on the issue on appeal remains adverse to the veteran, a supplemental statement of the case should then be prepared and furnished to him and his representative, containing an explanation of the reasons and bases for the decision reached, in light of the two-step analysis required by the legal standards governing reopening of a previous disallowance of service connection benefits after an unappealed rating decision, contained in 38 U.S.C. § 5108 (1992) and 38 C.F.R. § 3.156(a) (1991). If the prior denial has not been reopened, the supplemental statement of the case should also contain a summary of the additional evidence which has been received. If the prior denial has been reopened, the supplemental statement of the case should contain a summary of all of the pertinent evidence of record. 7. Relative to the claim for a permanent and total disability rating for pension purposes, which the Board has already determined is reopened with "new and material evidence," the RO should review all of the new evidence. Any further VA examination warranted for pension purposes should be carried out. If any change in the evaluations assigned for the veteran's disabilities in the August 1990 rating decision is warranted by the new evidence, or if the veteran is found to have any ratable disability not evaluated in August 1990, a new rating decision should be prepared to ensure that each of the veteran's chronic disabilities has been assigned a rating under the VA's Schedule for Rating Disabilities. Roberts v. Derwinski, U.S. Vet. App. No. 90-606 (May 15, 1992) (copy of slip opinion attached). 8. The evaluations assigned for the veteran's ratable disabilities should be combined under the combined ratings table of the Rating Schedule. The RO should then consider whether what the Court has referred to as the "average person" test provided under 38 U.S.C. § 1502(a)(1) (1992) and 38 C.F.R. § 4.15 (1991) is applicable. Talley v. Derwinski, U.S. Vet. App. No. 90-419 (April 6, 1992) (copy of slip opinion attached); Brown v. Derwinski, U.S. Vet. App. No. 90-505 (June 1, 1992), slip op. at 5 (copy of slip opinion attached). 38 C.F.R. § 4.15 (1991) references the total (100 percent) evaluations provided for certain disabilities under the Rating Schedule, and additionally provides a presumption of permanent and total disability for various combinations of permanent functional or sensory impairments. If the veteran has a 100 percent disability rating under the Rating Schedule, including one arising from the combination of lesser disability ratings, it must be determined whether his ratable disabilities are permanent. 9. If a permanent and total disability rating for pension purposes remains denied, the RO should consider whether both the percentage requirements under 38 C.F.R. § 4.16 (1991) and the permanence requirement under 38 C.F.R. § 4.17 (1991) are met, and, if so, whether the veteran is unemployable as a result of what the Court has referred to as "lifetime" disabilities. Brown, slip op. at 4. 10. If a permanent and total disability rating for pension purposes remains denied and the veteran has been found to not meet the percentage requirements under 38 C.F.R. § 4.16, the RO should consider whether the veteran nevertheless meets the criteria for a determination of "unemployable" under 38 C.F.R. § 3.321(b)(2) (1991). (The Board appreciates that the RO duly addressed this provision in the August 1990 rating decision.) 11. If a permanent and total disability rating for pension purposes remains denied, a supplemental statement of the case should be furnished to the veteran, containing an explanation of the RO's latest deliberations under all of the foregoing criteria of the "average person" and "unemployability" standards. The supplemental statement of the case should also contain the criteria of the Rating Schedule under which each of the veteran's ratable disabilities has been evaluated. Further, if the RO continues to find that the veteran has permanent medical problems which are not ratable because they are of willful misconduct origin, the reasons and bases for that determination should be included in the supplemental statement of the case. If either of the benefits sought on appeal remains denied, the veteran and his representative should be afforded the requisite 60 days to respond to the supplemental statement of the case. 57 Fed. Reg. 4,113 (1992) (to be codified at 38 C.F.R. § 20.302(c)). The case should then be returned to the Board. By this REMAND, the Board intimates no conclusion as to the final outcome of the issues addressed herein. The veteran need take no action until he is so advised by the RO. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * J. J. SCHULE C. J. STUREK *38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board 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 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.