Citation NR: 9722560 Decision Date: 06/27/97 Archive Date: 07/02/97 DOCKET NO. 94-42 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted in order to reopen a claim for entitlement to service connection for post-traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. L. Wright, Associate Counsel INTRODUCTION The veteran had active service from January 1945 to June 1946. This appeal arises from an April 1994 rating action of the Boston, Massachusetts, Regional Office (RO). The RO determined that the veteran had not submitted the requisite new and material evidence needed to reopen his claim for service connection for PTSD. The veteran has appealed this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in effect, that he has submitted the required new and material evidence to reopen his claim for service connection for PTSD. DECISION OF THE BOARD The Board of Veterans’ Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 veteran has submitted the requisite new and material evidence to reopen his claim for service connection for PTSD. FINDINGS OF FACT 1. The Board denied the veteran’s claim for service connection for PTSD in a decision of December 1990 and he was notified of this decision that same month. 2. Regulations used by the Board as a basis to deny the veteran’s claim in 1990 were liberalized. CONCLUSION OF LAW The evidence received since the Board denied the veteran’s claim for service connection for PTSD in December 1990 is new and material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background. In preparation for the veteran’s entrance into active service in January 1944, the service examiner found no psychiatric disability. A medical record of mid-August 1945 noted that the veteran had received thermal burns to his back, thorax, left upper extremity, and left cheek. The veteran was noted to be ambulatory and in good condition. The impression was mild 1st degree burns. He was hospitalized for these burns that were noted to have minimal reddening and did not need treatment. A separate medical record noted the veteran’s complaints of claustrophobia for the past 6 to 8 months. Two days later, it was noted that there was no evidence of burns and the veteran was scheduled to leave the hospital. He was referred for a neuropsychiatric evaluation. The veteran was given a neuropsychiatric evaluation in late August 1945. He complained of problems with claustrophobia. The veteran noted that he had been removed from jump school (paratrooper) because he had frozen up during training and had refused to participate in practice jumps. He had claimed that all his life he had a fear of closed places. The examiner reported the following: The soldier stated that other than this phobia he is perfectly all right; that he has no other ailments. He said that when he was sent into the hospital it was because he had been slightly burned while on KP duty. He had burnt some garbage in which there was some grease and the flames came out and burned his arm. However, he said he really suffered no burns but he was taken over to the dispensary and while the doctor was looking at his arm he told him about being nervous and tense while in a closed building. It was for this reason that the soldier was sent to the hospital and not because of the burn. The examiner reported that the veteran seemed sincere. The concluding opinion was that the veteran had a mild claustrophobia. There was no evidence of a disabling psychoneurosis. The veteran was returned to duty. The service medical records noted that he was absent without leave in late August 1945. He returned four days later. The veteran was given a separation examination in June 1946. His psychiatric evaluation was noted as normal. The veteran’s original claim for service connection for PTSD was filed in October 1988. This claim was denied in a rating action of April 1989. The veteran appealed this decision. A series of letters, dated from May 1962 to May 1965, from a physician at the Mayo Clinic noted that the veteran was suffering with depression. A private psychology evaluation of May 1977 gave a diagnostic impression of acute depressive episode to include transitory moments of schizoid ideation. A private discharge summary of June 1977 diagnosed manic depression. In a letter dated in October 1989, from William P. Straub, M.D., it was noted that the veteran had PTSD as a result of his burn injury in 1945. Dr. Paul S. Laffer wrote in February 1990 that the veteran had PTSD that was service- connected. At his hearing on appeal in March 1990, the veteran testified that in August 1945 he had been placed in charge of a group of German prisoners of war. While they were unloading boxes a fire broke out in the mess hall which the veteran attempted to put out. He claimed that he had thrown what he thought was a pale of water on the fire that caused it to flare-up and burn him. The veteran asserted that he “came to his senses” four or five days later in the hospital. He claimed that he could not see very well for several days. The veteran testified that he suffered with fear and anxiety while in the hospital. The Board issued a decision on this claim in December 1990. In its decision, the Board found: ...that the veteran had not been exposed in service to a psychologically traumatic event of such magnitude as to evoke significant symptoms of distress in most people and, as a result, any diagnoses of post-traumatic stress disorder would not be considered reliable. In April 1991, the veteran requested that his claim for service connection for PTSD be reopened on the basis of new and material evidence. A letter of March 1991 from Maressa Hecht Orzack, Ph.D., noted that the veteran had experienced three stressors while on active duty. The first was the veteran’s experience being burned in 1945. He also claimed that he heard about a fellow soldier being shot and killed during training and had to take a live grenade away from another fellow soldier who had panicked during training. Dr. Orzack diagnosed PTSD due to the veteran’s traumatic experiences of 1945. Dr. Richard L. Jacobs, in a letter of August 1991, opined that the veteran had PTSD that seemed clearly precipitated by the fire of 1945. The veteran was afforded hearings in March 1994 and December 1995 at which he gave similar testimony to the evidence noted above. II. Applicable Criteria. The Board’s decision of December 1990 is final and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302(a) (1996). In order to reopen his claim, the veteran must present or secure new and material evidence with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1996). III. Analysis. In December 1990, the Board determined that the totality of the evidence showed that the veteran did not have PTSD as a result of his experiences during WWII. It concluded that the evidence of record did not show that the veteran was exposed in service to a psychologically traumatic event of such magnitude as to evoke significant symptoms of distress in most people and, as a result, any diagnoses of post- traumatic stress disorder would not be considered reliable. It appears that the Board’s conclusion was based on the criteria for diagnosing PTSD as adopted in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, third edition (DSM- III). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1981). At that time, 38 C.F.R. § 4.125 (1989) relating to mental disorders in general had adopted the nomenclature of the DSM- III. It may also have been based on U. S. Department of Veterans Appeals (VA) manual M21-1, Subchapter XII, Para. 50.45 (Jan. 25, 1989), which incorporated the revised criteria of the DSM-III (DSM-III-R). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. rev. 1987). The criteria for diagnosing PTSD in both the third edition and the revised third edition are similar. Id. at 423. The latter edition was adopted in VA manual M21-1 at the time the Board previously considered this case. On October 8, 1996, the VA issued a final rule amending that portion of its Schedule for Rating Disabilities pertaining to mental disorders. 61 Fed.Reg. 52,695 (Oct. 8, 1996). The revised regulation took effect on November 7, 1996, and, hence, is in effect at the current time. This new final rule revised 38 C.F.R. §§ 4.125 through 4.129, and replaced § 4.130 with a new section that specifically adopted the fourth edition of the DSM (DSM-IV) as the basis for the nomenclature of the rating schedule for mental disorders. 61 Fed.Reg. 52,700 (Nov. 1996 amendments); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Despite this reference of DSM-IV in the recently revised VA general mental disability C.F.R. regulations now in effect, the Manual M21-1 PTSD provisions still specifically refer to the DSM-III-R. This version of the manual was adopted in 1987. See Manual M 21-1, PART VI, Para. 7.46(a) (1995) (sets forth detailed diagnostic criteria as required by DSM-III-R needed to establish PTSD). The Court of Veteran’s Appeals (Court) has held that the Manual M21-1 provisions in paragraph 7.26 dealing with PTSD are substantive rules that are the equivalent of VA regulations. The adoption of the specific PTSD criteria in May 1993 rendered moot the Manual M21-1 provisions regarding PTSD adjudication except where the manual is more favorable to a claimant. Where the Manual M21-1 imposes requirements not in the regulation that are unfavorable to a claimant, those additional requirements may not be applied against the claimant. Hayes v. Brown, 5 Vet.App. 60, 67 (1993). In this case, the adoption in the regulations of the criteria in DSM-IV as set forth in 38 C.F.R. § 4.130 constitutes an intervening change of regulation which itself is sufficient to change the factual basis of a claim. Akins v. Derwinski, 1 Vet.App. 228 (1991); See also Karnas v. Derwinski, 1 Vet. App. 308 (1991) and Spencer v. Brown, 4 Vet. App. 283 (1993). In this regard, the criteria in DSM-III-R as presently adopted by the Manual M21-1 and similar provisions in DSM- III, which appear to have been relied on in the last Board decision, provides that an essential feature of a diagnosis of PTSD is the development of characteristic symptoms following an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone. However, the Court has found that diagnostic criteria for a stressor now in effect for VA adjudication under DSM-IV differ substantially from those in DSM-III and DSM-III-R. The previous requirement that the psychologically traumatic event or stressor be one that would evoke significant symptoms of distress in almost everyone has been deleted, and DSM-IV instead requires that the person’s response to the stressor involve intense fear, helplessness, or horror. Cohen v. Brown, No. 94-661, p. 18 (U. S. Vet. App. March 7, 1997) The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been exposed to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or to others and (2) the person’s response must have involved intense fear, helplessness, or horror. In short, the criteria is no longer based solely on usual experience and response but is individualized (geared to the specific individual’s actual experience and response). Id. Because of the change in criteria in determining the sufficiency of a stressor, which was the very basis for the denial of the veteran’s claim by the Board in 1990, the claim must be reopened. ORDER New and material evidence having been submitted to reopen a claim for service connection for PTSD, the appeal to this extent only is granted. REMAND Under the circumstances, the Board finds that further development is required, and the case is remanded to the RO for the following action. 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran’s psychiatric disorders in recent years. After securing the necessary release(s), the RO should obtain legible copies of any records not already contained in the claims folder, to include those from any VA medical facility. The RO should specifically request a release from the veteran for his treatment records from: a. Paul S. Laffer, M.D. 115 Mill Street Belmont, Massachusetts 02178 b. William P. Straub, M.D. 37 Main Street Topsfield, Massachusetts 01983 c. Richard L. Jacobs, Ph.D. 1680A Beacon Street Brookline, Massachusetts 02146 d. Maressa Hecht Orzack, Ph.D. 115 Mill Street Belmont, Massachusetts 02178- 9106 All relevant leads should be followed in order to obtain the requested records. Once obtained, all records must be associated with the claims folder 2. The RO should obtain copies of all underlying medical records used in the December 1987 decision of the Social Security Administration. Once these records are obtained, they should be incorporated into the claims folder. 3. Upon completion of the above action, the veteran should be afforded a special VA psychiatric examination. The purpose of this examination is to determine if the veteran currently suffers from PTSD. If the veteran is found to have PTSD, the examiner should express an opinion for the record on whether or not the veteran’s claimed stressors from his military service are etiologically related to any current PTSD. The examining physician should specifically identify which stressors are linked to any diagnosed PTSD and determine the sufficiency of the stressors as a cause of any PTSD. All tests deemed necessary by the examiner must be conducted. The clinical findings and reasoning which form the basis of the opinions requested should be clearly set forth. The claims folder and a copy of this Remand must be made available to the examiner prior to the examination in order that he or she may review pertinent aspects of the veteran’s service and medical history. 4. Upon receipt of the examination report, the RO should review the report to ensure that it is adequate for rating purposes. If not, the RO should return the examination report to the examining physician and request that all questions be answered. 5. Regarding the veteran’s claim for service connection for PTSD, the RO’s attention is directed to the recent decision of the Court in the case of Cohen v. Brown, No. 94-661 (U. S. Vet. App. March 7, 1997). Therein, the Court held that adoption of new regulations based on the criteria of DSM-IV had drastically change the way the VA was to adjudicate service connection for PTSD. (See Section III). The Court further held that the version most favorable to the appellant, either 38 C.F.R. §§ 4.125 through 4.130 (Effective November 7, 1996) or M21-1, PART VI, Para. 7.46(a) (1995), would apply in the adjudication of service connection for PTSD. Id. at 15. If the determination on the issue of entitlement to service connection for PTSD remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and given a reasonable opportunity to respond. In doing so, the RO should specifically cite the new criteria, 38 C.F.R. §§ 4.125 through 4.130, and the old criteria, M21-1, and provide reasons and bases determining which one is most favorable to the veteran. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran need take no further action until he is informed. The purpose of this REMAND is to obtain additional medical information. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. I. S. SHERMAN Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1997) 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. 1997), 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which 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) (1996). - 2 -