92 Decision Citation: BVA 92-27458 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-51 985 ) DATE ) ) ) THE ISSUES Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for post-traumatic stress disorder (PTSD). Entitlement to an increased evaluation for postoperative residuals of left knee injury, currently rated 10 percent disabling. Entitlement to a temporary total rating for service-connected disability under the provisions of 38 C.F.R. § 4.29 (1991) for the period of hospitalization from November 28, 1990, to January 23, 1991. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD P. Gutstein, Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on appeal from the March 1991 rating action of the Department of Veterans Affairs (VA), Waco, Texas, Regional Office (RO). The veteran, who is the appellant, had active service from September 1967 to October 1969. He filed a notice of disagreement on March 26, 1991. He was furnished a statement of the case on May 6, 1991. He and his wife appeared at a hearing at the RO on May 20, 1991. The veteran filed a substantive appeal on June 18, 1991. The hearing officer rendered a decision on July 18, 1991. The veteran was furnished a supplemental statement of the case on September 18, 1991. The records were received by the Board on December 23, 1991, and the case was docketed on December 27, 1991. The records were referred to the veteran's representative on December 30, 1991, and a written argument was submitted in behalf of the veteran on March 20, 1992. The veteran has been represented throughout his appeal by the Disabled American Veterans. REMAND The veteran has been treated since service at a number of VA facilities. We believe that copies of records for all periods of medical treatment since service must be obtained and associated with the claims file. The veteran has cited instances of stressors in Vietnam, that will be described below, but he has not provided the dates and places of these incidents. It will be necessary for him to provide this information so that confirmation can be obtained from the United States Army and Joint Services Environmental Support Group (ESG). A June 1991 VA psychiatric examination has diagnosed PTSD presuming confirmation of claimed combat experiences in Vietnam. After the confirmation or nonconfirmation of the stressors has been obtained, it will be necessary to conduct another psychiatric examination with the findings to conform to DSM-III-R, Section 4.126, and VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.46. The veteran's representative also points out that the veteran has not been examined to evaluate his service-connected postoperative residuals of left knee injury for many years. The records show that he has been treated for that disability by the VA and that he continues to have a number of complaints relating to his left knee. We believe that a current orthopedic examination is in order prior to final appellate review. Although the veteran was afforded a personal hearing at the VA on May 20, 1991, in a subsequent VA Form 1-9 filed on June 18, 1991, the veteran answered "yes" to the question as to whether he wished to appear personally at a hearing. It should be clarified whether the veteran wishes to have another hearing on his claim. With regard to the issue of whether new and material evidence has been submitted to reopen the veteran's claim for service connection for PTSD, we note that service connection for PTSD was initially denied by rating action in December 1989, and the veteran did not appeal that determination which is final on the basis of the evidence then of record. The veteran, thereafter, sought to reopen his claim for service connection on the basis of new and material evidence in December 1990. Accordingly, that issue must be considered in accordance with the provisions of the United States Court of Veterans Appeals (Court) decision of Manio v. Derwinski, 1 Vet.App. 140 (1991). In that decision, the Court set forth a two-step analysis to be employed when an appellant seeks to reopen a claim previously denied on the basis of "new and material evidence." The two-step analysis first requires that a determination be made, under 38 U.S.C.A. § 5108 (West 1991), regarding whether the evidence is "new and material" so as to permit reopening of the claim. If it is, the claim is reopened and a second determination must then be made as to whether the evidence warrants revision of the former disposition. The second level of analysis must be based upon an evaluation of the merits of the claim in light of all the evidence, both new and old. An adverse determination regarding either question is appealable. In light of the above discussion requiring further development of the evidence, and in order to ensure that the two-step analysis elucidated by the Court is properly employed in this case, and pursuant to the provisions of 38 U.S.C.A. § 5107(a) (West 1991) which mandated that we assist the veteran in the prosecution of his claim, appellate action is deferred on all issues for the following development: 1. The RO should obtain copies of the clinical records for the veteran's period of hospitalization at the Kaiser-Permanente Hospital, Oakland, California, for the period from April 29 to May 1, 1974, and for any subsequent periods of hospitalization or treatment from that facility. 2. The RO should obtain copies of complete clinical records for outpatient treatment reportedly received by the veteran at the VAMC, Martinez, California, in November 1970 and for any other period of hospitalization or treatment thereafter. 3. The RO should obtain copies of complete clinical records for the veteran's period of hospitalization from October to November 1989 at the VAMC, Dallas, Texas, and for any other period of hospitalization or treatment at that facility. 4. The RO should obtain copies of the veteran's complete clinical records of hospitalization for the periods from October 19 to November 15, 1990, and from November 28, 1990, to January 23, 1991 (to include a PTSD program), from the VAMC, Waco, Texas as well as copies of all outpatient treatment records not already on file from that facility. 5. The RO should obtain copies of all inpatient and outpatient treatment records of the veteran not already on file from the VAMC, Fort Worth, Texas. 6. The RO should contact the veteran to obtain confirmation of stressors listed by the veteran as to dates and places the incident(s) occurred, and the unit (division, regiment, battalion, company) to which he was assigned or attached at that time for the following: (1) While in Vietnam, he discussed the fact that he saw "kids" getting shot up by other soldiers because they blew up a jeep. (2) The veteran has described that his best friend, Charles Wayne Washburn, got blown up by a "mortar round," that he did not witness the event but that he saw pieces of the body thereafter. At his personal hearing, the veteran described being stationed around Saigon, Long Bin, Them Hep, and Ben Tri, but he should advise whether any of these places are where the stressor events took place. The veteran should also be requested to clarify whether he wishes another personal hearing, either at the RO or before the Board. 7. The veteran has been described as being in Vietnam Counteroffensive Phase V, his military specialty was shown as being a mechanic and his DD Form 214 shows that he received the National Defense Service Medal, Vietnam Service Medal and Vietnam Campaign Medal. After the information has been received from the veteran as to the dates and places of the claimed stressors in Vietnam, confirmation of these events should be requested from the United States Army and Joint Services Environmental Group, Building 2089, Stop No. 387, Fort Belvoir, Virginia 22060. The RO should provide copies of information received from the veteran and the service department with these requests. This is in accordance with M21-1, Part VI, paragraph 7.46. 8. After all the above development has been completed and a reply has been received from the ESG, the RO should schedule the veteran for a psychiatric examination to confirm whether the veteran has PTSD based on confirmation or nonconfirmation of the stressor or stressors and based on manifestations of the psychiatric disorder as described in DSM-III-R, 309.89. The claims file should be made available to the examiner in connection with his study of the case. 9. The veteran should be scheduled for an examination by an orthopedist to evaluate the extent and severity of the veteran's service-connected postoperative residuals of a left knee injury. The claims file should be made available to the examiner in connection with his study of the case. He should also be furnished with a current X-ray of the veteran's left knee. It is requested that the examination findings include range of motion studies by degrees, stability of the knee, pain on motion, any muscle atrophy or weakness of the knee, crepitus on motion, etc. 10. The RO should consider the veteran's claim for service connection for PTSD in light of the two-step analysis set forth above in Manio. If the determination is that new and material evidence has not been submitted and the claim for service connection for PTSD is not reopened, the veteran and his representative should be notified of the decision. If it is determined that new and material evidence has been submitted and the claim is reopened but the evidence does not warrant a grant of service connection for PTSD, the veteran and his representative should be notified of that decision also. The veteran and his representative should then be furnished a supplemental statement of the case to include all issues previously certified on appeal. They should be given an opportunity to respond to the supplemental statement of the case before the records are returned to this Board for further appellate review. The purpose of this REMAND is to develop the evidence and to afford the veteran his right of due process, and the Board does not intimate any opinion at this time. No action is required of the veteran until he is notified. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 G. H. SHUFELT C. D. ROMO 38 U.S.C.A. § 7102(a)(2)(A) (West 1991) 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.A. § 7252 (West 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. 57 Fed. Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).