93 Decision Citation: BVA 93-15525 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-01 825 ) DATE ) ) ) THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Roger W. Rutherford, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD William J. Jefferson, Associate Counsel INTRODUCTION The veteran had active service from April 1943 to December 1945, and also from October 3, to November 29, 1950. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Roanoke, Virginia, Regional Office (RO). Entitlement to service connection for a back disorder was denied by the Board in October 1985. The veteran attempted to reopen his claim of service connection for a back disorder in April 1989. At that time, he also claimed entitlement to service connection for post-traumatic stress disorder. A rating decision dated in July 1989 essentially determined that new and material evidence had not been submitted to reopen the claim of service connection for a back disorder; the claim of service connection for post-traumatic stress disorder was denied. The veteran was notified of the determinations in July 1989. A notice of disagreement was received in August 1989. A statement of the case was issued in August 1989. A substantive appeal was received in August 1989. A personal hearing was held at the RO in November 1989. A decision rendered by a hearing officer at the RO, dated in December 1989, confirmed the denials. The case was sent to the Board and in September 1990 a hearing was held at the Board. In January 1991 the Board entered a decision on the merits, determining that a new factual basis had not been presented to reopen the claim of entitlement to service connection for a back disorder. The Board also denied the veteran's claim of entitlement to service connection for post-traumatic stress disorder. The veteran then filed an appeal to the United States Court of Veterans Appeals, hereinafter Court. In an order entered on November 9, 1992, the Court remanded the case to the Board, pursuant to 38 U.S.C.A. § 7252(a) (West 1991). In this order, the Court granted a joint motion to sever the issues on appeal, and ordered that the issue of service connection for post-traumatic stress disorder be remanded to the Board for further action, as identified in the June 1992 Appellee's Motion for Partial Remand. In the motion for remand, additional development was proposed, including providing the veteran with a VA psychiatric examination in accordance with the VA Physician's Guide for Disability Evaluation Examinations, to determine the nature and severity of any psychiatric disability that he may have. The veteran's claim of service connection for post-traumatic stress disorder was then to be adjudicated by the RO, considering all evidence of record, including the results of the VA psychiatric examination, as well as all relevant laws and regulations. The Court's order also indicated that evidentiary development should include compliance with VA Adjudication Procedure Manual M21-1 regarding essentials of post-traumatic stress disorder diagnosis in examinations and development for post-traumatic stress disorder. The Court further ordered that the June 1992 Appellee's Motion for Partial Summary Affirmance, regarding the issue of whether new and material evidence had been submitted to reopen the claim of service connection for a back disorder was to be held in abeyance. The Appellee's Motion for a Stay of Further Proceedings was granted, pending further order of the Court. The RO is alerted that additional evidence has been submitted in conjunction with the veteran's claim of entitlement to service connection for post-traumatic stress disorder, received at the Board on May 14, 1993, which must be considered. REMAND The veteran reportedly retired in the mid-1980's (1984, 1985, or 1986), developed bad dreams and then an alcohol problem thereafter. He stopped drinking about October 1987 and was treated for post-traumatic stress disorder and retirement adjustment disorder beginning in 1989. He had had increased anxiety over the prior three years. The dreams concerned buzz bombs and London, England. He has indicated that he was exposed to life threatening and stressful situations during service in World War II. He has reported that he had anxiety from a torpedo attack by enemy ships while being transported to the European Theater in cramped ship quarters. He also stated that during service he was subjected to an incident in which his billet was bombed by the enemy and caught on fire, and that he experienced bombing on other occasions, including "buzz bombing," as well as friendly machine gun fire. He argues that he has post-traumatic stress disorder as a result of the aforementioned experiences. It is pertinent to note that in an April 1993 statement from a private doctor, received in May 1993, it was indicated that the veteran had been treated by the doctor for post-traumatic stress disorder since July 1991, and that he met the criteria of post-traumatic stress disorder as provided in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev. 1987). The veteran's private clinical records have not been associated with the claims folder. Additionally, received in May 1993 is a March 1993 statement from the veteran's pastor concerning World War II experiences that the veteran related. That statement has not been considered. A "well grounded" claim has been established obligating the VA to assist the veteran in developing facts pertinent to his claim. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The VA has a statutory duty to assist veterans with their claims under the provisions of 38 U.S.C.A. § 5107(a) (West 1991). Additionally, the VA has a duty to obtain existing medical records which would assist the appellant in developing his or her claim. Littke v. Derwinski, 1 Vet.App. 90 (1990); Pritchett v. Derwinski, 2 Vet.App. 116 (1992). In compliance with the Court's November 1992 order, the case is referred to the RO to provide the veteran a VA psychiatric examination to determine the nature and degree of severity of his psychiatric disorder, if any. This case is REMANDED to the RO for the following: 1. After obtaining a signed authorization from the veteran, the RO should obtain his clinical records from July 1991 to the present, from Kimball J. Beck, M.D., and the Saltville Medical Center, P.O. Box 729, Saltville, Virginia, 24370, and associate those records with the claims folder. 2. The veteran should be afforded a VA psychiatric examination to determine the nature and severity of his current psychiatric disorder(s), if any. Psychological testing should be conducted, and the examination should be performed in line with the provisions of the VA Physician's Guide for Disability Evaluation Examinations. The claims folder should be made available to the examiners prior to the examination(s) for use in the study of the case, if possible. After the requested development has been accomplished, the case should be reviewed by the originating agency, as previously indicated, considering and in compliance with the VA Adjudication Procedure Manual M21-1 regarding essentials of post-traumatic stress disorder diagnosis in examinations (M21-1, part VI, para. 7.46b); and development for post-traumatic stress disorder (M21-1, part VI, para. 7.46e). If the claim remains in a denied status, the appellant should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, if necessary, the case and the requested evidentiary data should be returned to the Board of Veterans' Appeals for further appellate disposition. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * J. E. DAY (MEMBER TEMPORARILY ABSENT) SAMUEL W. WARNER (CONTINUED ON NEXT PAGE) *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. § 7252 (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.