BVA9510731 DOCKET NO. 93-14 348 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder. 2. Entitlement to a permanent and total disability rating for nonservice-connected pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from January 1968 until March 1971. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Huntington, West Virginia, Regional Office (RO). In November 1989, the Board denied the veteran service connection for a psychiatric disability, including post- traumatic stress disorder (PTSD). In June 1990, the veteran attempted to reopen the claim for service connection for a psychiatric disorder, including PTSD. He also presented a claim of entitlement to a permanent and total disability rating for pension purposes. In subsequent rating decisions, the RO denied the claim on the basis that the evidence submitted was not new and material, and on the basis that the veteran's nonservice connected disorders were not such that a permanent and total disability was warranted. This appeal ensued. REMAND Essentially, the veteran contends that he has submitted evidence which is new and material which would warrant reopening his claim for service connection for a psychiatric disability. He notes that, since the Board's November 1989 decision, he has been diagnosed as having PTSD by both VA and non-VA medical personnel. He also maintains that he has many disabilities which have rendered him unable to work, thereby warranting a grant of pension benefits. In November 1989, the Board denied the veteran entitlement to service connection for an acquired psychiatric disorder, including PTSD. The bases for the decision were that any psychoneurosis treated in service was an acute and transitory condition that had completely resolved by the time he was separated from active duty, and that the evidence did not show that he had PTSD. The November 1989 decision of the Board is final. 38 U.S.C.A. § 7104 (West 1991). Hence, the claim for service connection for an acquired psychiatric disorder, including PTSD, may only be considered if the veteran submits new and material evidence. 38 U.S.C.A. § 5108 (West 1991). The Board notes that the results of an April 1991 VA fee basis psychiatric examination found that the veteran had a moderate, recurrent generalized anxiety disorder, chronic in nature, mild PTSD, and alcohol abuse. The examiner noted that “no particular or specific stressors” could be elicited from the veteran, apart from generalized stressors. In January 1992, the veteran underwent extensive psychological evaluation through Appalachian Psychiatric Services which resulted in multiple diagnoses; however, the clinical psychologist surmised that the probable diagnosis would be PTSD. On psychiatric examination, also conducted in January 1992 at the same clinic, the psychiatrist diagnosed PTSD, major affective illness (depression), episodic excessive drinking, and borderline intelligence. Significantly, each of the above-mentioned examinations were based upon interviews with the veteran and on a history related by him. The Board, however, is not bound to accept medical opinions which are based on history supplied by the veteran where that history is unsupported by the medical evidence. Black v. Brown, 5 Vet.App. 177 (1993); Swann v. Brown, 5 Vet.App. 229 (1993); Reonal v. Brown, 5 Vet.App. 458 (1993); Guimond v. Brown, 6 Vet.App. 69 (1993). Moreover, the Board is not required to accept a physician’s diagnosis “[j]ust because a physician or other health care professional accepted the appellant’s description of his [wartime] experiences as credible and diagnosed the appellant as suffering from PTSD.” West v. Brown, 7 Vet.App. 70, 77 (1994) quoting Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992). Indeed, service connection for PTSD requires medical evidence establishing a clear diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1994). Accordingly, following a review of all of the evidence of record, both old and new, the Board concludes that it cannot at this time determine whether or not new and material evidence has been presented which would warrant reopening the claim for service connection for PTSD without further information. In this respect, the record shows that the veteran served in Vietnam from July 1969 until July 1970. He was awarded the National Defense Service Medal, the Vietnam Campaign Medal and the Vietnam Service Medal. He is not shown to have been awarded the Purple Heart Medal or any other decoration reflective of combat activity. While in Vietnam, he reports being stationed at Da Nang, and his personnel records disclose service with supply companies performing duties as a rigger and forklift operator. The veteran has related that while at Da Nang, he was subject to frequent rocket attacks in which personnel were killed. Unfortunately, the stressor statements provided by him are not sufficiently detailed as they perhaps could be. The Board further observes that the stressor information which the veteran has supplied to the RO has not been referred to the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the claimed stressors. In this respect, the Board acknowledges that the information provided by the veteran probably is not as complete as the ESG will need to verify the existence of the veteran's claimed stressors. Nevertheless, the provisions of the VA ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL M21-1) pertaining to the adjudication of PTSD provide that "where records available to the rating board do not provide objective or supportive evidence of the alleged in-service traumatic stressor, it is necessary to develop this evidence." MANUAL M21-1, Part VI, 7.46(f)(2) (emphasis added). Accordingly, as the development outlined in MANUAL M21-1 includes providing the information submitted by the veteran to the ESG, such development is mandatory. The earlier-mentioned psychiatric examinations found that the veteran was suffering from PTSD, among other psychiatric disorders; however, examinations based on a questionable history is inadequate for rating purposes. West, 7 Vet.App. at 77-8. Thus, it is necessary that the veteran be provided an examination where the examiner has the accurate history of the veteran's military service. The veteran also contends that he has many disabilities which have rendered him unable to work, thereby warranting a grant of pension benefits. The Board notes that he was born in June 1950, has a high school education, and work experience as a mason and laborer. He claims that he has not worked in many years because of his disabilities. At the present time, he is not entitled to service-connection for any disability. His nonservice-connected disabilities include: anxiety with a history of a personality disorder, rated 30 percent disabling; status-post right lateral meniscectomy, rated 20 percent disabling; compression of the left cutaneous nerve with paresthesia of the left thigh, rated 10 percent disabling; degenerative arthritis of the lumbar spine, rated 10 percent disabling; and various other disorders, each rated non-compensably disabling; for a combined 50 percent nonservice-connected disability rating. The United States Court of Veterans Appeals (Court) has rendered several opinions which affect the development and analysis of claims for entitlement to a permanent and total disability rating for nonservice-connected pension benefits. Necessary steps in adjudicating pension claims are carefully delineated in Roberts v. Derwinski, 2 Vet.App. 387 (1992), and Brown v. Derwinski, 2 Vet.App. 444 (1992). In those cases, the Court analyzed the law with respect to pension entitlement, 38 U.S.C.A. § 1502 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.342 (1994), and set forth a two- prong test for determining pension eligibility. The Court indicated that permanent and total disability may be shown by either of two means: (1) the veteran must be unemployable as a result of a lifetime disability, or (2) if not unemployable, he must suffer from a lifetime disability which would render it impossible for the average person with the same disability to follow a substantially gainful occupation. On review of the rating decisions leading to this appeal it does not appear that full consideration was given to each of these two standards. Moreover, a review of the statement and supplemental statements of the case (SOC and SSOC respectively) does not reveal that the veteran has been informed of either the regulations governing the rating assigned or the rationale behind the rating assigned each non service connected disorder. That is to say, for example, the veteran has yet to be informed what criteria were used in rating his nonservice connected headaches zero percent disabling, or why a rating in excess of zero percent was not in order. Accordingly, further development is warranted. Finally, the Board notes that the veteran has applied for Social Security disability benefits, however, the record is not clear whether he is receiving such benefits. The record also shows that the West Virginia Board of Rehabilitation determined in February 1992 that the veteran would need to perform light work because of his physical disabilities and, in order to do this, it was felt that he would need more training. Nonetheless, it was the counselor's opinion that it was unlikely that the veteran had the ability to concentrate and learn because of his nerves, and as a consequence the veteran was denied rehabilitation services at the time, but he was also advised that if his condition changed he was to reapply. Copies of the West Virginia State Board of Rehabilitation records are not in the veteran's claims file. It is also not clear whether the veteran has or is receiving VA vocational rehabilitation. Therefore, pursuant to the VA's duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994), this case is REMANDED to the RO for the following development: 1. The RO is to request and associate with the claims file copies of the veteran' s VA treatment records subsequent to August 1992. 2. The RO should contact the veteran and request that he identify any and all non-VA health care providers who have treated him for PTSD, or psychiatric symptomatology in general, since 1989. After obtaining any necessary authorization, the RO is to request and associate with the claims file copies of the complete records pertaining to the veteran's treatment from the sources identified. 3. The RO is to contact the Social Security Administration to determine whether the veteran was or is receiving disability benefits. A copy of any administrative law judge's decision, along with copies of any medical or vocational records, are to be obtained and associated with the veteran's claims file. All efforts made in attempting to develop this evidence must be fully documented in the claims folder. 4. The RO is to request and associate with the claims file copies of the veteran's complete records from the West Virginia State Board of Rehabilitation, Division of Rehabilitation Services. 5. The RO is to obtain and associate with the veteran's claims file any available VA vocational rehabilitation and counseling folders. If there are no folders available, the RO should document that fact in the claims folder, together with the reason(s) why there are no folders. 6. The RO is to request from the veteran a statement containing as much detail as possible regarding any and all stressful events to which he was exposed in service. He should be asked to provide specific details of the claimed stressful events to the best of his ability. The veteran's statement should include dates, places, detailed descriptions of the events, the number of times these events occurred, the locations, the identities of any individual he may have witnessed being killed or seriously wounded and any other identifying information concerning other individuals involved in the events. 7. After obtaining the foregoing requested information from the veteran, the RO should forward it, together with copies of the veteran's service personnel records and a copy of his record of service (DD Form 214), to the United States Army and Joint Services Environmental Support Group, 7798 Cissna Road, Springfield, Virginia 22150, in an attempt to verify any claimed stressor. Any information obtained is to be associated with his claims file. 8. Following receipt of the ESG's report, and the completion of any additional development warranted or suggested by that office, see e.g. Zarycki v. Brown, 6 Vet.App. 91, 99 (1993), the RO should prepare a report detailing the nature of any combat action, or in-service stressful event, verified by the ESG. If no combat stressor has been verified, the RO should so state in its report. This report is then to be added to the claims folder. 9. The RO is to schedule the veteran for a social and industrial survey to obtain a concise and relevant social base, including data from disinterested individuals, that will assist the VA in evaluating the veteran's social and industrial impairment and in assessing his potential for improved social functioning and employment. The veteran's claims file, together with a copy of this remand, must be provided to and reviewed by the social worker prior to conducting the social and industrial survey. The social worker's report is to be added to the veteran's claims file. 10. Once the above-mentioned development has been accomplished, then, and only then, is the RO is to arrange for the veteran to undergo appropriate medical examinations at a VA medical facility, to include a psychiatric examination by a board of two VA psychiatrists who are familiar with PTSD and who have not previously seen or treated the appellant. These examinations must be conducted in accordance with the VA's Physician's Guide for Disability Evaluation Examinations. All appropriate tests are to be conducted and X- rays taken. The veteran's claims file, together with a copy of this remand, must be provided to and reviewed by all examiners prior to their respective studies. The examiners are to report detailed findings, both positive and negative, and provide complete rationale for all opinions expressed. Any range of motion studies must include a full description of both active and passive motion, and the point at which pain, if any, is reported by the veteran in each plane. All examination reports are to be incorporated with the veteran's claims file. In conducting the veteran's psychiatric examination, the board of two psychiatrists are to note and distinguish the symptomatology of any and all psychiatric disorders found. All indicated studies, including PTSD sub-scales, are to be performed. A Global Assessment of Functioning Score, consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, must be assigned for each and every psychiatric disorder, including PTSD, if existing, along with an explanation of what the assigned score represents. A complete rationale for the score assigned to each disorder must be provided. The examiners must give an example of the characteristics of each psychiatric disorder found, express an opinion as to the severity of these symptoms, and the effect each disorder has on his social and industrial adaptability. The examiners must express an opinion whether any psychiatric disability is linked to any specific incident or incidents in service. If symptoms of differing psychiatric disorders cannot be distinguished, the examiners should so state and explain why. In determining whether or not the veteran has PTSD due to an in-service stressor, the board of two psychiatrists are hereby notified that only the verified history, detailed in the reports provided by the ESG and/or the RO, may be relied upon. If the examiners believe that PTSD is the appropriate diagnosis, they must specifically identify which stressor(s) detailed in the ESG's and/or the RO's report is (are) responsible for that conclusion. Any and all opinions expressed must be accompanied by complete rationale. All non-psychiatric examiners are to report detailed findings pertaining to the veteran's nonservice-connected disabilities. The examiners are to express opinions as to the severity of the disabilities, the extent to which the disabilities limit the veteran's activities and the extent to which the disabilities adversely affect his ability to obtain and retain gainful employment. 11. Following completion of the foregoing, the RO must review the claims file to ensure that all of the above-mentioned development has been completed in full. In particular, the RO should review the VA psychiatric examination report to verify that any diagnosis of PTSD was based on the verified history provided by the ESG and/or RO. If the examiners relied upon a stressor history which was not verified, that examination report must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of PTSD, related to service, based on an examination which relied upon an unverified history is inadequate. West, 7 Vet.App. at 77. 12. The RO must then list all of the veteran's disabilities on a formal rating document and assign separate evaluations to each disability. The RO should assess the history of the veteran's disabilities and the effect of pain, where appropriate. In evaluating each of the disabilities, consideration should be given to 38 C.F.R. § 3.321(b)(2) (1994) and, in the case of the psychiatric disabilities, consideration must be given to the holding in Hood v. Brown, 4 Vet.App. 301 (1993), the opinion of the Office of the General Counsel in VA O.G.C. Prec. 9-93, 59 Fed. Reg. 4752 (1994), as well as the holding in Massey v. Brown, 7 Vet.App. 204 (1994). 13. Lastly, the RO is to review and reevaluate whether new and material evidence has been submitted to reopen the claim for service connection for an acquired psychiatric disability, including PTSD, and whether entitlement to a permanent and total disability rating for pension purposes exists consistent with the holdings in Roberts and Brown. If either decision remains unfavorable to the veteran, he and his representative are to be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with current appellate procedures, the claims file, to include the additional requested evidence, is to be returned to the Board for further appellate consideration. The Board expresses no opinion, either legal or factual as to the final outcome warranted in this case. The veteran need take no action until he is contacted by the RO. DEREK R. BROWN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1994).