Citation NR: 9603646 Decision Date: 02/15/96 Archive Date: 03/07/96 DOCKET NO. 94-08 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an effective date, prior to May 20, 1992, for a grant of a permanent and total disability rating for pension purposes. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed, including post-traumatic stress disorder. REPRESENTATION Appellant represented by: Verna Guesnon, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from August 1968 to January 1973. The Board of Veterans’ Appeals (Board) denied entitlement to a permanent and total disability rating for pension purposes in March 1988. The claims file contains a report of a rating decision dated in September 1990 wherein entitlement to a permanent and total disability rating for pension purposes was denied. The current appeal arose from a March 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The RO granted entitlement to a permanent and total disability rating for pension purposes effective April 20, 1992, and determined that both new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed. In a May 1993 rating decision the RO affirmed the determination that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed, and included post-traumatic stress disorder on the basis that such psychiatric disability was not shown by the evidence of record. The case has been forwarded to the Board for appellate review. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed, including post-traumatic stress disorder, will be addressed in the REMAND portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that as early as 1986 he was found to be suffering from a psychosis and totally disabled from working, thereby warranting an effective date, prior to April 20, 1992, for a grant of entitlement to a permanent and total disability rating for pension purposes. It is argued that his tax records showed he was not employed after 1989. It is averred that when a request was made for pension benefits in 1990, the veteran was permanently and totally disabled. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an effective date, prior to April 20, 1992, for a grant of a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The Board of Veterans’ Appeals denied entitlement to a grant of a permanent and total disability rating for pension purposes in March 1988. 2. The RO denied entitlement to a grant of a permanent and total disability rating for pension purposes when it issued a rating decision in September 1990. 3. The veteran was not shown to be unable to work due to his disabilities, that is, entitlement to pension benefits did not arise prior to April 20, 1992, the date on which the veteran was found to be unable work when seen on an outpatient basis by VA. 4. The evidence of the veteran’s unemployability by reason of permanent and total disability was received and considered in conjunction with his April 20, 1992, reopened claim, and included his VA Income-New Worth and Employment Statement (VA Form 21-527), VA outpatient treatment reports, and the January 1993 VA examination reports. CONCLUSION OF LAW The criteria for an effective date, prior to April 20, 1992, for a grant of a permanent and total disability rating for pension purposes have not been met. 38 U.S.C.A. §§ 1502(a)(1), 1521(a), 5107, 5108, 5110(b)(3), 7104, 7105 (West 1991); 38 C.F.R. §§ 3.105(a), 3.321, 3.340, 3.342, 3.400(b)(1), 4.15, 4.16, 4.17, 4.25 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). It has been contended by the veteran that as early as 1986 he was found to have a psychosis and was not able to work, thereby warranting retroactive pension benefits to 1986. However, a review of the record discloses that the Board denied the veteran’s claim for a permanent and total disability rating for pension purposes in a decision entered in March 1988. The Board found, among other things that: the veteran was 38 years old and had the requisite wartime service; he indicated he had a high school education, experience as a truck driver, and was not currently employed; the veteran had a disability manifested by chronic paranoid schizophrenia; he had no other serious disabilities, and his psychiatric disease did not permanently preclude him from the pursuit of gainful employment. The March 1988 Board decision denying entitlement to a permanent and total disability rating for pension purposes was final. 38 U.S.C.A. § 7104(b). There is no legal authority for the Board to grant pension benefits retroactive to 1986 as was contended on appeal. The veteran again requested entitlement to a permanent and total disability rating for pension purposes when he submitted a claim in August 1990. The evidence submitted with the claim included notification by the Social Security Administration that an award notification would be forthcoming with respect to Supplemental Security Income, not Social Security Disability benefits. Also submitted were VA hospital summaries pertaining to inpatient care during June and August 1990. The RO determined that the veteran’s disabilities for pension purposes were chronic paranoid schizophrenia, post-traumatic stress disorder, evaluated as 50 percent disabling; bilateral pes planus, scars of the face, burn scars with graft to each buttock, blunt trauma to the chest and right second and fourth rib fractures, and bilateral subconjunctival hematomas, each rated as noncompensable. The combined schedular evaluation for pension purposes was 50 percent. The RO determined that a permanent and total disability rating for pension purposes was not warranted when it issued a rating decision in September 1990. The Board is of the opinion that the rating decision was proper as the evidence then of record did not show that the veteran was unable to pursue substantially gainful employment. He did not have several disabilities, with at least one rated as 40 percent disabling and additional disability to result in a combined schedular rating of 70 percent for pension purposes. 38 C.F.R. § 4.16(a) (1994). There was no competent medical evidence of record to permit the conclusion that the veteran had a lifetime disability which would render it impossible for the average person to follow a substantially gainful occupation. In a statement of record received in May 1992, the veteran declared his intention of reopening a claim for a permanent and total disability rating for pension purposes. Evidence submitted in support of his claim was his income-net worth and employment statement, VA outpatient treatment reports, and VA examinations conducted in January 1993. The RO reviewed the assembled evidence of record and determined that a basis existed for a grant of a permanent and total disability rating for pension purposes. Pension benefits were awarded by the RO effective April 20, 1992, the date the veteran was seen in the VA outpatient clinic and found to be unable to work. In the veteran’s case the Board is governed by 38 C.F.R. § 3.400(b)(2)(1), which states that awards of pension benefits may not be effective “prior to the date entitlement arose.” The veteran in effect submitted a claim for pension benefits when he presented himself in the VA outpatient clinic on April 20, 1992, and found on that date to be unable to work. The RO’s selection of April 20, 1992, as the effective date for a grant of benefits was proper and, as noted earlier, no basis existed for a grant of pension benefits prior to the date entitlement arose. The Board has evaluated the testimony presented by the appellant and his wife before a travel member of the Board sitting at the RO in February 1994, in light of the evidence of record and contentions presented on appeal. It is the judgment of the Board that no basis exists upon which to predicate an effective date, prior to April 20 ,1992, for a grant of a permanent and total disability rating for pension purposes. 38 U.S.C.A. §§ 1502(a)(1), 1521(a), 5107, 5108, 5110(b)(3), 7104, 7105; 38 C.F.R. §§ 3.105(a), 3.321, 3.340, 3.342, 3.400(b)(2), 4.15, 4.16, 4.17, 4.25. ORDER Entitlement to an effective date, prior to April 20, 1992, for a grant of a permanent and total disability rating for pension purposes, is denied. REMAND Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the disorder, credible supporting evidence that the claimed inservice stressor(s) 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 this regard, the veteran served as a supply clerk with the United States Army in Vietnam. His decorations include a Vietnam Service Medal. The appellant is not shown to have been awarded the Combat Infantryman’s Badge, Purple Heart Medal, or other decoration reflective of combat activity. He has, however, expressed in general terms stressful combat related activity in connection with his Vietnam service. Unfortunately, the description of stressors provided by the veteran is not sufficiently detailed as it perhaps could be. The Board further observes that the stressor information of record has not been referred by the RO 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 of record is not sufficiently detailed to permit such referral. Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of post- traumatic stress disorder 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 N21-1, 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 Board observes that post-traumatic stress disorder was not only referred to in VA psychotherapy reports on file, it was also diagnosed as the result of a VA special psychiatric examination conducted in January 1993. An examination based on a questionable history, however, is inadequate for rating purposes, West v. Brown, 7 Vet.App. 70, 77-8 (1994). Thus, it is necessary that the veteran be provided an examination where the examiner has the accurate history of the appellant’s military service. Furthermore, the Board observes that the veteran has been receiving psychotherapy at the local VA outpatient clinic. Those records are most recently dated in 1992. Hence, further development is warranted. Therefore, pursuant to VA’s duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1994), the Board will defer adjudication of the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder, including post-traumatic stress disorder, pending a REMAND of the case to the RO for further development as follows: 1. The RO should request and associate with the claims file copies of the complete records pertaining to the veteran’s treatment, inpatient and outpatient, at the VA Medical Center in New Orleans, Louisiana. 2. The RO should request from the appellant 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, units of service, duty assignments, as well as the names, ranks, units of assignment and any other identifying information concerning other individuals involved in the events. In this respect, the Board thus takes this opportunity to inform the veteran that the United States Court of Veterans Appeals (Court) has held that asking the veteran to provide the underlying facts, i.e., the names of individuals involved, the dates, and the places where the claimed events occurred, does not constitute an onerous or an impossible task, Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). 3. After obtaining the foregoing requested information from the veteran, the RO should forward it together with copies of the claimant’s service personnel records, and copies of his records of service (DD-214) to the United States Army and Joint Services Environmental Support Group (ESG), Building 5089, Stop #387, Fort Belvoir, Virginia 22060. Any information obtained should be associated with the claims file. 4. Following receipt of the ESG’s report, and the completion of any additional development warranted or suggested by that office, the RO should prepare a report detailing the nature of any combat action, or inservice 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 file. 5. Then, and only then, should the RO schedule the veteran for a psychiatric examination by a board of two VA psychiatrists who have not previously seen or treated him. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations (AMIE Worksheet Number 0910) (located in VBA/ARMS electronic database on CD-ROM update issued on 21 September 1995), and all appropriate studies including post- traumatic stress disorder sub scales must be conducted. The veteran’s claims file must be made available to and reviewed by the examiners prior to conducting and concluding their examinations. In determining whether or not the veteran has post-traumatic stress disorder due to an inservice stressor the examiners 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 post-traumatic stress disorder 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 a complete rationale. The examiners must assign a Global Assessment of Functioning Score which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, and explain what the assigned score means. 6. Following completion of the foregoing development, 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 psychiatric examination report to verify that any diagnosis of post-traumatic stress disorder was based on the verified history provided by the ESG and/or the RO. If the examiners relied upon a history which was not verified, that examination report must returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of post- traumatic stress disorder, related to service, based on an examination which relied upon an unverified history is inadequate. West, 7 Vet.App. at 77. 7. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder, variously diagnosed, including post-traumatic stress disorder. If the benefit requested on appeal is 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 afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. ALBERT D. TUTERA 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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 -