Citation NR: 9633293 Decision Date: 11/26/96 Archive Date: 12/02/96 DOCKET NO. 94-12 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a variously diagnosed chronic acquired psychiatric disorder, including post traumatic stress disorder. 2. Entitlement to an increased evaluation for fusion of the first metacarpophalangeal joint of the right thumb, residuals of old fracture (major), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from April 1963 to June 1967. The claims file contains a report of a rating decision dated in September 1985 wherein entitlement to service connection for a chronic acquired psychiatric disorder to include post traumatic stress disorder was denied. The veteran was notified by letter of the above denial and of his right to appeal. He did not file a timely appeal. The claims file contains a report of a rating decision dated in May 1990 wherein the denial of entitlement to service connection for post traumatic stress disorder was continued. The veteran was not formally notified of this determination. The claims file contains a report of a rating decision dated in January 1991 wherein entitlement to service connection for a chronic acquired psychiatric disorder to include post traumatic stress disorder was denied. The veteran was notified by letter of the above determination and of his right to appeal. He did not file a timely appeal. The current appeal arose from an August 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. The RO affirmed the denial of entitlement to service connection for a chronic acquired psychiatric disorder to include post traumatic stress disorder; granted entitlement to a temporary total convalescence evaluation for hospital treatment for the right thumb effective July 2 through August 31, 1990; and reinstated a 10 percent evaluation for disability of the right thumb effective September 1, 1990. The RO affirmed the denial of entitlement to service connection for post traumatic stress disorder when it issued a rating decision in August 1993. The RO, in pertinent part, affirmed the determinations previously entered when it issued a rating decision in December 1993. The case has been forwarded to the Board of Veterans’ Appeals (Board) for appellate review. REMAND Service connection for post traumatic stress disorder 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(s). 38 C.F.R. § 3.304(f) (1995). In this regard the veteran trained as a rifleman and served a tour of duty with the United States Marine Corps in Vietnam. His decorations include a Vietnam Service Medal with three Stars, and a Republic of Vietnam Campaign Medal with one device. The stressor information provided by the veteran has not been referred to the Marine Corps Historical Center in Washington, D.C., or the Commandant of the Marine Corps in Quantico, Virginia, in an attempt to verify the claimed stressors. In this respect, the Board acknowledges that the stressor information provided by the veteran is not sufficiently complete to permit verification of such stressor information. 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 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 United States Marine Corps Historical Center and the Commandant of the Marine Corps, such development is mandatory. The Board observes that VA psychiatrists for many years have determined that the veteran has post traumatic stress disorder, among variously other diagnosed psychiatric pathology to include abuse of drugs including alcohol, dysthymic disorder, mixed avoidant and passive-aggressive personality, etc. An examination based upon a questionable history, however, is inadequate for rating purposes. See 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. The representative has contended that the veteran’s other variously diagnosed psychiatric pathology in addition to chronic gastrointestinal and cardiovascular disorders are secondary to his post-traumatic stress disorder. The Board is of the opinion that a comprehensive special psychiatric evaluation of the veteran by a board of two VA psychiatrists with necessary development for verification of alleged service stressors would materially assist in the adjudication of the appeal. The Board notes that the appellant last underwent a formal examination by VA to ascertain the nature and extent of severity of his right thumb disability in September 1993. The Board notes that the United States Court of Veterans Appeals (Court) has expanded the scope of clinical inquiry in orthopedic examinations in view of DeLuca v. Brown, 8 Vet.App. 202 (1995), thus warranting a vigorous application of the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71(a) (1995) of the VA Schedule for Rating Disabilities. The Board is of the opinion that a contemporaneous examination of the appellant by a VA orthopedic surgeon would materially assist in the adjudication of his appeal. Therefore, pursuant to VA’s duty to assist the veteran in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1995), the Board is deferring adjudication of the issues certified for appellate review pending a remand of the case to the RO for further development as follows: 1. The RO should schedule the veteran for an examination by a VA orthopedic surgeon for the purpose of ascertaining the nature and extent of severity of his fusion of the first metacarpophalangeal joint of the right thumb. The examination is to be conducted in accordance with the diagnostic procedures of the VA Physician’s Guide for Disability Evaluation Examinations. All indicated studies are to be conducted. The claims file must be made available to and reviewed by the orthopedic surgeon prior to conduction and completion of the examination. In accordance with DeLuca v. Brown, 8 Vet.App. 202 (1995), the examination report should cover any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. If the veteran describes flare- ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the orthopedic surgeon is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up, that fact should be so stated. Any opinions expressed must be accompanied by a complete rationale. 2. The RO should 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 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, units of assignment and any other identifying information concerning other individuals involved in the events. In this respect, the Board takes this opportunity to inform the veteran that the 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 impossible or onerous task. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). 3. After obtaining the foregoing requested information from the appellant, the RO should forward it together with a copy of his service personnel records (on file) and medical records (on file), together with a copy of his records of service (DD-214’s) to the Marine Corps Historical Center, Building 58, Washington Navy Yard, Washington D.C. 20374-0530; and to the Commandant of the United States Marine Corps (Code MMRB), Quantico, Virginia 22134-5030. Any information obtained is to be associated with the claims file. 4. Following receipt of the report(s) from the Marine Corps Historical Center and/or the Commandant of the United States Marine Corps, and the completion of any additional development suggested by those agencies, the RO should prepare a report detailing the nature of any combat action, or in service stressful event, as verified by the above agencies. 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 arrange for a special psychiatric examination of the veteran by a board of two VA psychiatrists. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations. All appropriate studies, including post traumatic stress disorder studies are to be performed. The claims file must be made available to and reviewed by the examiners prior to conduction and completion of the examinations. In determining whether the veteran has post traumatic stress disorder due to an in service stressor the examiners are hereby notified that only the verified history detailed in the reports provided by the United States Marine Corps agencies 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 United States Marine Corps agency and/or the RO reports is/are responsible for that conclusion. If there are psychiatric disorders in addition to post traumatic stress disorder, the examiners should reconcile the diagnoses and should specify which symptoms are associated with each of the disorders and whether any additional psychiatric disorder, cardiovascular disorder, and/or gastrointestinal disorder found on examination is(are) causally related to or a manifestation of post traumatic stress disorder, or is aggravated by post traumatic stress disorder. Any and all opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning Score (GAF) 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, 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 requested examinations and required opinions to ensure that they are in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. The RO should review the psychiatric examination reports to verify that any diagnosis of post traumatic stress disorder was based on the verified history provided by the agencies of the United States Marine Corps and/or the RO. If the examiners relied upon a history which was not verified, that examination report(s) must be 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. See West, 7 Vet.App. at 77. 7. 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 a variously diagnosed chronic acquired psychiatric disorder including post traumatic stress disorder, and an increased evaluation for fusion of the first metacarpophalangeal joint of the right thumb with application of the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71(a). If the benefits requested 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 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 appellant until he is notified by the RO. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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) (1995). - 2 -