BVA9404834 DOCKET NO. 93-11 254 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. 2. Entitlement to service connection for chronic bronchitis. 3. Entitlement to service connection for arthritis of multiple joints. 4. Entitlement to service connection for a bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel REMAND The veteran had active service during World War II from March 1943 to January 1946. He contends he incurred an acquired psychiatric disorder (to include post-traumatic stress disorder (PTSD)), arthritis of multiple joints, chronic bronchitis, and a hearing loss during that period and that he presently suffers from those same conditions. He maintains that he received treatment for the first three of these conditions while in service and shortly thereafter and, essentially, that a hearing loss first manifested itself during service. Based on numerous statements and testimony offered by the veteran, the Board determines that the veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Once a veteran has submitted well-grounded claims, the VA has a duty to assist him in the development of facts pertinent to his claims. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The veteran stated in his appeal that he was diagnosed with chronic bronchitis by Dr. Winston, without providing further information regarding when or where such diagnosis was made. At a hearing in May 1993, he testified that shortly after separation from service Dr. Sabisco treated him for a bronchitis attack. No medical records on file reflect treatment by either physician. The veteran should be requested to provide specific information regarding any treatment received from Dr. Winston and/or Dr. Sabisco, and an attempt should be made to obtain relevant medical records from these physicians. In his request for service connection for chronic bronchitis, bursitis and a nervous condition, the veteran stated he had received treatment for a lung condition at Lakeview General Hospital in Battle Creek, Michigan, in 1949 and 1972. He testified during his hearing that he had been hospitalized there for 16 days in 1978 for bronchial problems and that the hospital had been subsequently converted into a nursing home. The veteran stated in his appeal that he had received treatment for a psychiatric problem from Community Hospital, Battle Creek, Michigan, in 1960. He testified at his hearing that he received similar care there in 1962. No attempt has been made to obtain treatment records from either facility. The VA's statutory duty to assist includes the duty to obtain pertinent medical records, especially those specifically brought to the attention of the VA. Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990). In this regard, we note that the veteran has stated that he had received medical care for bronchitis, bursitis and a nervous condition at the Knoxville VA Medical Center (VAMC) since 1987 and at the Battle Creek VAMC as recently as 1990. Medical records on file from the former facility date only through March 1988, and from the latter only until January 1988. Efforts should be made to obtain all relevant treatment records not already associated with the claims file. Review of the claims file reveals the veteran has reported as medical expenses charges from Dr. Ben Bursten and Dr. Robert R. Casey reflecting treatment subsequent to the dates of treatment records presently on file from each physician. Both physicians have provided him with treatment for one or more of his claimed disabilities. As the duty to assist includes the obtaining of all relevant medical records, Dyess v. Derwinski, 1 Vet.App. 90, 92 (1991), all pertinent documents regarding treatment of the veteran must be obtained and associated with the claims folder. The duty to assist is heightened where, as here with respect to service records, the putative corroborative records are in the control of a governmental agency. Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992). In response to two Department of Veterans Affairs (VA) requests for information, the National Personnel Records Center (NPRC) reported in August 1991 and December 1991 that the veteran's service records, personnel and medical, had been destroyed in a fire. The first report also noted that if further information were provided a search of an alternative source of information could be conducted. Although the veteran completed a National Archives and Records Administration form (NA Form 13075 (Rev. 6-89)) providing further information which was received by the Department of Veterans Affairs (VA), Nashville, Tennessee, Regional Office (RO) in January 1992, it does not appear that form was submitted for processing. In light of the veteran's allegations of in-service medical care and stressors, he should be requested to complete a new NA Form 13075, and provide specific information in order to assist the Board in obtaining any available service personnel and medical records. The veteran is requesting, in part, service connection for PTSD. Despite having been diagnosed with PTSD by a private physician, VA medical records fail to contain such a diagnosis. The veteran has provided numerous examples of in-service stressors in his statements and testimony. For example, in his substantive appeal, he stated that he had seen the decapitated body of a soldier from his unit, and he maintains that he was a member of the "Red Ball Express" transportation/supply trucking unit. The development of evidence by the RO regarding verification of a veteran's claimed stressors is addressed in the Department of Veterans Affairs Adjudication Procedure Manual, M21-1, Part VI. It is necessary to develop the evidence when records available to the RO do not provide objective or supportive evidence of the claimed stressors. Paragraph 7.46f (2), Part VI, M21-1. After all attempts to obtain the veteran's service records have been expended, the Environmental Support Group (ESG) should then be requested to attempt to verify the veteran's stressors as stated in order to assist the veteran in the substantiation of his claim. The veteran should also be requested to attempt to provide the name and date of death of the soldier he saw in order to assist in the ESG's evaluation. To date, the veteran has not been scheduled for a VA pulmonary examination. In light of his claims of medical treatment for bronchitis both during, and shortly after, service, it would be advisable to obtain a contemporaneous medical evaluation of any lung condition that may be present. A VA psychiatric evaluation should also be performed in view of the PTSD diagnosis offered by the veteran's private physician and the fact that the last such examination was conducted in December 1991. The VA's duty to assist the veteran in obtaining and developing available facts and evidence includes obtaining VA examinations. The current status of any pulmonary and psychiatric disorders is pertinent to the veteran's claim. The veteran claims that he presently suffers from chronic bronchitis secondary to exposure to mustard gas, phosgene, chlorine and tear gas which occurred during chemical warfare training in basic training. The veteran indicated in his appeal that he served with the 165th Chemical Smoke Generator Company from March 1943 to December 1943, the relevant time period. He states he underwent training at Camp Sebert, Alabama, for decontamination of war gases. He maintains that in addition to exposure to the chemicals when in decontamination suits, he experienced direct exposure of chemicals to his skin and the inhalation of fumes. Given that it is unclear whether the veteran is alleging that he was harmed during routine training, or was involved in chemical testing performed by the Army, we find it advisable to have the ESG evaluate the likelihood that the veteran was involved in such testing, or was otherwise exposed to these gases, especially mustard gas. In this regard, the RO should also develop this issue in conformance with the appropriate procedures for chemical testing claims, as stated in Veteran's Benefits Administration (VBA) Circular 21-91-7 (February 5, 1992). We note the veteran's representative observed the need for further development of this issue at the veteran's hearing. The veteran has provided partially illegible photocopies of two DD Form 214s reflecting separate periods of active service. Legible photocopies of each DD 214 should be obtained from the veteran in order to assist the Board in the development of his claim. In closing, the Board finds that the statement of the case and the supplemental statement of the case provided to the appellant did not contain all pertinent laws and regulations, and neither addressed the issue of service connection for arthritis of multiple joints, though it was certified on appeal. 38 U.S.C.A. § 7105(d)(1)(B) (West 1991). The provisions of 38 C.F.R. § 3.316 (1993) were not included or discussed, as required by VA laws and regulations. Under the circumstances of this case, we are of the opinion that additional assistance is required. Therefore, this case is REMANDED for the following actions: 1. The RO should contact the veteran and request that he provide information regarding the approximate dates of treatment by, and the addresses of, Dr. Winston and Dr. Sabisco. After obtaining any necessary authorization, the RO should then request and associate with the claims file any records of treatment of the veteran by both physicians. 2. After obtaining any necessary authorization, the RO should contact Dr. Ben Bursten and request that he provide copies of all treatment records and reports of all examinations accorded the veteran subsequent to April 1992 and associate the same with the claims file. 3. After obtaining any necessary authorization, the RO should contact Dr. Robert R. Casey and request that he provide copies of all reports of treatment or examinations accorded the veteran subsequent to November 1991 and associate the same with the claims file. 4. The RO should contact the veteran and request that he provide the address and approximate dates of treatment accorded him at Lakeview General Hospital in Battle Creek, Michigan. It should be noted that facility may now be operating as a nursing home. After obtaining any necessary authorization, the RO should then attempt to obtain and associate with the claims folder all medical records of treatment accorded the veteran at that facility. Special efforts should be made to obtain records of treatment for a lung condition in 1949 and 1972, as well as records of a hospitalization in 1978. 5. The RO should contact the veteran and request that he provide the address and approximate dates of treatment accorded him at Community Hospital in Battle Creek, Michigan. After obtaining any necessary authorization, the RO should then attempt to obtain and associate with the claims folder all medical records of treatment accorded the veteran. Special efforts should be made to obtain records of treatment for a psychiatric condition in 1960 and 1962. 6. The RO should contact the Battle Creek Outpatient Clinic and the Knoxville Outpatient Clinic and obtain records of any treatment of the veteran subsequent to January 1988 and March 1988, respectively. We specifically refer to both hospital admission and outpatient records of treatment and evaluation reportedly accorded the veteran during hospitalization at the Battle Creek VAMC from December 16, 1988 to January 15, 1991 and December 16, 1989 to January 1990. 7. The RO should contact the veteran and request that he provide legible photocopies of both DD Form 214s in his possession and associate the same with the claims file. 8. The RO should contact the veteran and request that he complete a National Archives and Records Administration Form 13075, providing specific information regarding the approximate day, month and year of any treatment accorded him during service along with his complete organizational assignment including company, battalion, regiment and camp. This information should then be forwarded to the National Personnel Records Center and a search of Surgeon General Office records, and any other alternative sources of service records should be conducted. Any service personnel and/or medical records obtained should be then associated with the claims folder. 9. The RO should contact the veteran and request that he provide details regarding the soldier from his unit who was killed during his first term of service including as accurately as possible the date of death, the soldier's name and what unit he was assigned to at that time. The RO should then attempt to obtain from the appropriate facility unit records of the veteran of all units he was assigned to during his first term of service. After the above development has been accomplished, the RO should contact the Environmental Support Group (ESG) for confirmation of the incidents as alleged by the veteran, in accordance with Paragraph 7.46f(2)(c), Part VI, of M21-1. 10. The RO should request that the ESG also perform an evaluation of the likelihood that the veteran was involved in chemical testing performed by the Army during 1943, or was otherwise exposed to mustard gas. 11. The RO should contact OTSG, Attn.: DASG-RDZ (SGRD-SGS), 5109 Leesburg Pike, Falls Church, VA. 22041-3258 and attempt to determine whether the veteran was involved in any chemical testing performed by the Army during 1943. The request should contain all necessary information as noted in VBA Circular 21-91-7 (February 5, 1992). 12. Once the above development has been completed, the veteran should be afforded VA psychiatric and pulmonary examinations to determine the nature and extent of any psychiatric and pulmonary disorders currently manifest. Any tests or evaluations deemed necessary by the examiners should be performed. The psychiatric examiner is specifically requested to offer an opinion as to whether the veteran has PTSD. The respiratory examiner is specifically requested to offer an opinion as to the probable etiology of any respiratory disease found. The claims folder or photocopies of pertinent information must be made available to each examiner both before, and during, each examination. Upon completion of the requested development, the RO should again review this case. If the benefits sought are not granted, the veteran and his representative should be furnished with a supplemental statement of the case which includes all pertinent laws and regulations and a thorough discussion of the reasons for the decisions reached. The veteran and his representative should be afforded the applicable period to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development and to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 WARREN W. RICE, JR. JACQUELINE E. MONROE CHARLES E. HOGEBOOM 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. 38 C.F.R. § 20.1100(b) (1993).