Decision Date: 09/08/95 Archive Date: 09/08/95 DOCKET NO. 93-20 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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, to include post traumatic stress disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left leg neurological disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. R. Bucci, Associate Counsel INTRODUCTION The veteran served on active duty from June 1968 to June 1970. This appeal arises from a rating decision in June 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. REMAND In September 1990, the RO denied service connection for a nervous condition and neurological damage to the left leg. The veteran was informed of this decision in writing, however, he did not file a timely notice of disagreement. The current claim stems from the veteran's attempt to reopen. In this case, the veteran contends that his pre-existing psychiatric disorder was aggravated by his active service. In the alternative, he asserts that he currently suffers from an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD), which he developed as a result of his Vietnam experience. Additionally, the veteran contends that he suffers from a nerve disorder of the left leg which occurred in service. In the alternative, he asserts that his left leg disorder is made worse by his acquired psychiatric disorder, to include PTSD. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). In regard to the claim of an acquired psychiatric disorder, to include PTSD, the Board observes that the veteran's March 1968 entrance examination contains a January 1967 medical statement from F. W. Reed, M.D., indicating a prior history of treatment for extreme nervousness by a now deceased Dr. Gilbert. Clinical evaluation in March 1968, however, revealed the veteran to be psychiatrically normal, and the record as currently constituted does not deprive the veteran of his entitlement to the presumption that he was psychiatrically sound at enlistment. Bagby v. Derwinski, 1 Vet.App. 225 (1991). Post service, the veteran has been treated on an outpatient basis for various psychiatric complaints, to include nervousness, anxiety, sweats, etc. In January 1992, a referring VA examiner stated that the veteran seemed very genuine and it sounded like he might suffer from PTSD. At the psychiatric consultation, the diagnosis was a panic disorder and agoraphobia. It appears from the record, however, that the claims folder was not available for review before the above diagnosis was rendered. As an adequate compensation examination requires that the examiner be afforded an opportunity to review and to consider all pertinent records "in order to assure a fully informed examination," Caffrey v. Brown, 6 Vet.App. 377, 381 (1994), the Board finds that the veteran was not provided a "thorough and contemporaneous medical examination." Green v. Derwinski, 1 Vet.App. 121, 123 (1991); Waddell v. Brown, 5 Vet.App. 454, 456 (1993). Additionally, the Board observes that in a May 1993 statement, retired Army Sergeant [redacted], recounted potentially "stressful" events that the veteran experienced in the Vietnam war, including viewing mass graves, surviving many ambushes and motor attacks while on convoy, and witnessing the serious injury of a close friend. Moreover, on one occasion, the veteran was reportedly credited for leading a convoy to safety after the lead vehicle was destroyed, and Mr. [redacted] stated that the appellant was awarded the Army Commendation Medal for this action. Unfortunately, the record does not indicate that the RO attempted to obtain all the specifics from the veteran pertaining to his alleged stressors. Additionally, the RO apparently never attempted to verify the veteran's claimed stressors through the offices of the United States Army and Joint Services Environmental Support Group (ESG). The United States Court of Veterans Appeals in West v. Brown, 7 Vet.App. 70 (1994), held that PTSD claims based on an allegation of a combat stressor require a determination whether or not the veteran actually engaged in combat. Accordingly, as 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 inservice traumatic stressor, it is necessary to develop this evidence." Manual M21-1, Part VI, 7.46(f)(2) (emphasis added). The Board points out that the veteran's representative, The American Legion, has also specifically requested that this case be remanded for the above proper development. In regard to the claim of a left leg neurological disorder, the Board points out that a disability which is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1994). Secondary service connection may also be granted for the degree of aggravation to a nonservice connected disorder which is proximately due to or the result of a service connected disorder. Allen v. Brown, 7 Vet.App. 439 (1995). A review of the claims file reveals that the service medical records are negative for any complaint, finding, or diagnosis of any left leg disorder. Post service, however, the veteran has been treated on an outpatient basis for complaints of left leg numbness, pain, swelling, and in January 1992, he complained that his left leg felt numb and became worse when nervous. As no examiner has been asked to determine whether any left leg disorder is etiologically related to, or made more severe by, any acquired psychiatric disorder, to include PTSD; and as the Board's evaluation cannot be a fully informed one absent a proper VA compensation examination, Green v. Derwinski, 1 Vet.App. 121 (1991), further development is warranted. Accordingly, this case is REMANDED for the following action: 1. The RO should ask the veteran to provide the names and addresses of all health care providers who have provided treatment since May 1993 for an acquired psychiatric disorder, to include PTSD, and/ or a left leg neurological disorder. After securing any necessary releases, the RO should obtain these records. This request specifically includes, but is not limited to, securing pertinent records from the VA Medical Center in Mountain Home, Tennessee, and the VA Outpatient Clinic in Knoxville, Tennessee. 2. The RO should attempt to obtain from the National Personnel Records Center a copy of the citation which accompanied the veteran's award of the Army Commendation Medal, as well as a copy of his personnel ("201") file. 3. The veteran should be asked to provide specific details about the stressful events he claims to have experienced in service. In this regard, the veteran should be asked to provide the precise dates and places of each claimed stressful event, as well as his unit assignment at the time of each claimed stressor. The veteran should further provide the full names and approximate dates pertaining to any comrade who was killed or wounded in action. The RO should also request that the veteran provide the full name and address of any comrade who witnessed the alleged traumas. The RO should then attempt to obtain a "buddy" statement from any identified person. The veteran is hereby informed that the United States Court of Veterans Appeals has held that requiring a claimant to provide this information to the VA does not represent an impossible or onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). 4. Thereafter, the information provided by the appellant concerning the specific circumstances of the claimed stressors, and a copy of the veteran's service records must be sent to the United States Army and Joint Services Environmental Support Group, 7798 Cissna Road, Springfield, Virginia 22150, for verification of the stressors claimed by the veteran. 5. Following the receipt of the ESG's report, and the completion of any necessary development, the RO should prepare a report detailing the nature of any combat action, or stressful event, that has been verified by the ESG. If no combat or stressor has been verified, the RO should so state in their report. This report is then to be added to the claims folder. 6. Then, and only then, should the RO schedule the veteran for a VA neuropsychiatric examination by a neuropsychiatrist who has not previously seen or treated the veteran. This examination is to be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations in order to determine the nature and extent of any neurological or psychiatric disorder which may be present. All indicated studies, including post-traumatic stress disorders sub scales, are to be performed. The claims file must be provided to and reviewed by the examiner prior to conducting this examination. In determining whether the veteran has PTSD the examiner is 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 examiner believes that PTSD is the appropriate diagnosis the examiner must specifically identify which stressor detailed in the ESG's and/or the RO's report is responsible for that conclusion. If an acquired psychiatric disorder and a left leg disorder are diagnosed, then the neuropsychiatrist is requested to offer an opinion whether it is as least as likely as not that the veteran's psychiatric disorder is etiologically related to the left leg disorder and/ or whether the psychiatric disorder increased the severity of any left leg neurological disorder. If the neuropsychiatrist is unable to provide any part of any requested opinion that fact should be noted in the examination report together with a detailed rationale explaining why the opinion cannot be provided. All opinions expressed must be accompanied by a complete written rationale. 7. Following the completion of the foregoing the RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the VA neuropsychiatric examination report to verify that any diagnosis of PTSD, was based on the verified history provided by the ESG and/or the RO. If the examiner relied upon a history which is not verified, that examination report must be returned as inadequate for rating purposes. In this respect the Board observes that the Court has held that a diagnosis of PTSD based on an examination which relies upon an unverified history is inadequate for rating purposes. West, 7 Vet.App. at 77. 8. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issues of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder; and whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left leg neurological disorder. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be provided. Thereafter, the case should be returned to the Board, if otherwise in order. By this REMAND, the Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until he is otherwise notified. 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). - 2 -