Citation NR: 9636325 Decision Date: 12/24/96 Archive Date: 01/02/97 DOCKET NO. 93-13 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. 2. Entitlement to an effective date prior to July 30, 1992, for service connection for a low back disorder. 3. Entitlement to an effective date prior to July 30, 1992, for service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his sister ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had a period of active duty for training from July to December 1957. The veteran also had active military service from March 1963 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of October 1992 and January 1996 by the Department of Veterans Affairs (VA), St. Louis, Missouri, Regional Office (RO). As a further preliminary matter, the Board notes that although the veteran requested that he be afforded a personal hearing in July 1996 and such a hearing was scheduled in August 1996, a November 1996 memorandum from the RO indicates that the veteran canceled his hearing. Lastly, the Board notes that the issue of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, will be addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO was incorrect in not granting the benefits sought on appeal. He maintains that the effective date of his awards of service connection for low back and right knee disorders should be April 23, 1991, which is the date that he filed his claims. Therefore, he requests favorable determinations by the Board. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 the veteran's claims of entitlement to an effective date prior to July 30, 1992, for service connection for low back and right knee disorders. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The Board denied the veteran's claim of entitlement to service connection for a back disorder in July 1977 and notified him of such decision at that time. 3. The veteran submitted an application for service connection for low back and right knee disorders in April 1991. 4. In May 1991, the RO requested information from the veteran pertaining to his low back and right knee disorders. 5. In July 1991, the RO informed the veteran that action on his claims could not be completed due to his failure to submit the requested information. 6. The veteran submitted an application for service connection for low back and right knee disorders on July 30, 1992. CONCLUSIONS OF LAW 1. The requirements for an effective date prior to July 30, 1992, for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 5107, 5110, 7103 (West 1991); 38 C.F.R. §§ 3.400, 20.1100 (1995). 2. The requirements for an effective date prior to July 30, 1992, for service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 5107, 5110, 7103 (West 1991); 38 C.F.R. §§ 3.400, 20.1100 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted claims which are plausible. The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). In July 1977, the Board denied the veteran's claim of entitlement to service connection for a low back disorder. A Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100. In April 1991, the veteran submitted an application for service connection for low back and right knee disorders. By letter in May 1991, the RO informed the veteran that he should submit new and material evidence regarding his claim for service connection for a low back disorder as well as evidence showing a current right knee disorder and continuity of symptomatology of a right knee disorder since his separation from active service. This letter further indicated that, if such information was not received within one year from the date of the letter, benefits may not be paid prior to the date of the receipt of the information if entitlement was established. By letter in July 1991, the RO informed the veteran that it was unable to complete action on his claims and was therefore denying such claims due to his failure to submit the requested evidence. On July 30, 1992, the veteran submitted an application for service connection for low back and right knee disorders. By decision in July 1995, the Board determined that service connection was warranted for low back and right knee disorders and the RO established July 30, 1992, as the effective date of the awards. Under the law, the effective date of an award of disability compensation based upon an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received if the claim is received more than one year after the claimant's separation from service. 38 U.S.C.A. § 5110(a) and (b)(1); 38 C.F.R. § 3.400(b)(2)(i). Based upon a thorough review of the evidence of record, the Board affirms the RO's decision with regard to the establishment of the effective date of the awards of service connection for low back and right knee disorders as July 30, 1992. In this regard, the Board notes that although the veteran submitted an application for service connection for low back and right knee disorders in April 1991, he failed to submit the requested evidence that was necessary to complete action on his claims. Where evidence requested in connection with an original claim or a claim to reopen is not furnished within one year after the date of the request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation based on such evidence shall commence not earlier than the date of filing the new claim. See 38 C.F.R. § 3.158(a) (1995). Since, the veteran abandoned the claims of entitlement to service connection for low back and right knee disorders that he filed in April 1991, the law does not provide for an effective date earlier than July 30, 1992, the date that he refiled an application for those benefits. See 38 U.S.C.A. § 5110(a) and (b)(1); 38 C.F.R. § 3.400(b)(2)(i). ORDER An effective date prior to July 30, 1992, for the award of service connection for a low back disorder is denied. An effective date prior to July 30, 1992, for the award of service connection for a right knee disorder is denied. REMAND In regard to the veteran's claim of entitlement to service connection for post-traumatic stress disorder, the Board notes that this case previously came before the Board and was remanded for additional development in July 1995. The veteran's case, however, is not ready for further appellate review as the requested development has not been undertaken. Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition; credible supporting evidence that the claimed in-service stressor 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) (1995). Evidence necessary to establish occurrence of a recognizable stressor during service to support a diagnosis of post- traumatic stress disorder will vary depending upon whether the veteran was engaged in combat with the enemy. Where it is determined, through recognized military citations or other supportive evidence, that the veteran engaged in combat with the enemy and the claimed stressor is combat-related, the veteran's lay testimony may be sufficient to establish the occurrence of such stressor, provided such testimony is credible and consistent with the circumstances, conditions, and hardships of service. Where the veteran did not engage in combat or the claimed stressor is not combat-related, however, the record must contain evidence which corroborates the veteran's testimony as to the occurrence of the claimed stressor. Moreau v. Brown, No. 94-883 (U.S. Vet. App. Sept. 12, 1996). The veteran contends that he has post-traumatic stress disorder as a result of the traumatic experiences that he underwent during active service. These experiences include being subjected to enemy fire during which people near him were injured, including a person that was lying right beside him; being subjected to friendly fire on a hilltop in Pleiku in mid-1968; and being attacked by heavy mortar tanks that dropped at least 100 bombs during which he and his men were caught without the ability to return fire and a number of people around him were injured. Although the veteran has reported these experiences, no attempt has been made to verify them. In this respect, while the Board acknowledges that the veteran's descriptions probably do not include the type of detail necessary to confirm the claimed stressors, the provisions of the VA Adjudication Procedure Manual (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 information to the United States Joint Services and Environmental Support Group (ESG), such development is mandatory. Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the Board’s opinion that further development of the case is warranted. Accordingly, this case is REMANDED for the following actions: 1. 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 specific details of the claimed stressful events to the best of his ability, including particularly, dates, places, detailed descriptions, units of service, duty assignments, as well as the full names, ranks, units of assignment and any other identifying information concerning other individuals involved in the events. The Board takes this opportunity to inform the veteran that the United States Court of Veterans Appeals 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, is not an impossible or onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The RO should caution the veteran that failure to provide all of the requested information may have an adverse effect on the outcome of his appeal. 2. After obtaining the foregoing requested information from the veteran, the RO should forward it with a copy of his record of service (DD-214) to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield, Virginia 22150, in an attempt to verify any claimed stressor. Any information obtained is to be associated with the claims file. Even if the veteran does not provide the information requested in the above paragraph, the RO must still attempt to verify the claimed stressors by providing the ESG with the information which is currently of record. 3. Following receipt of the ESG’s report, and the completion of any additional development warranted or suggested by that agency, the RO should prepare a report detailing the nature of any combat action, or in-service stressful event, verified by the ESG. If no stressor has been verified, the RO should so state in its report. The report is then to be added to the claims file. 4. Then, and only then, should the RO schedule the veteran for a special psychiatric examination by a board of two VA psychiatrists who have not seen or treated him. All appropriate studies, including post-traumatic stress disorder sub scales, are to be performed. The claims file must be made available to and reviewed by the examiners prior to the examinations. In determining whether or not 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 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 detailed in the ESG’s and/or the RO’s report is responsible for the 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. The examination report should be typed. 5. 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 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, the examination report 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. West v. Brown, 7 Vet.App. 70, 77 (1994). 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for post-traumatic stress disorder. If the determination remains adverse to the veteran, the case should be returned to the Board after compliance with the provisions for processing appeals, including the issuance of a supplemental statement of the case and provision of the applicable time period for response thereto. The purpose of this REMAND is to obtain additional development, and 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. 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & 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, 102 Stat. 4105, 4122 (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) (1995). - 2 -