Citation NR: 9734672 Decision Date: 10/14/97 Archive Date: 10/16/97 DOCKET NO. 93-04 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a back condition. 2. Entitlement to service connection for a neck condition. 3. Entitlement to service connection for degenerative joint disease of the left ankle. 4. Entitlement to service connection for a psychiatric disorder, claimed as post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Daniel G. Krasnegor, Associate Counsel INTRODUCTION The veteran served on active duty from August 1968 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 1992 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in June 1994, at which time they were remanded for additional evidentiary development. Entitlement to service connection for PTSD, back and neck disorders will be addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran maintains that shortly before separation from service, he suffered a left ankle injury such that he has residuals which should be service-connected. DECISION OF THE BOARD The 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 record supports entitlement to service connection for degenerative joint disease of the left ankle. FINDINGS OF FACT 1. Service medical records show that the veteran injured his left lower extremity in a December 1970 motorcycle accident. 2. The veteran is currently diagnosed with degenerative joint disease of the left ankle; a VA physician has opined that the currently diagnosed is related to military service. CONCLUSION OF LAW Degenerative joint disease of the left ankle was incurred in service. 38 U.S.C.A. §§ 1110; 5107 (West 1991 & Supp. 1997); 38 C.F.R. § 3.303 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background At separation in May 1971, a report of examination reveals that the veteran was diagnosed with a slight sprain of the left ankle. In January 1993, the veteran presented testimony at a personal hearing before a member of the Board. He reported that he injured his left ankle when he twisted it trying to put on a pair of cowboy boots while in service. He said that he was in a cast for six weeks afterwards. He recalled that the treatment for that injury was at a United States Naval Hospital in San Diego. Of record is a May 1995 VA examination report. The report reflects that the veteran gave a history of a severe sprain to his left ankle in service in 1971, treated with six weeks of immobilization and crutches. X-rays of the left ankle showed a probable old medial malleolus injury at the ligamentous insertion, mild talonavicular degenerative disease and a heel spur. The examiner opined that it was likely that the currently diagnosed ankle degenerative joint disease was related to the injury suffered in service. The veteran was afforded a personal hearing before the undersigned Board member in June 1997. At that time, he reiterated that he had first injured the ankle in service. Analysis Initially, the Board has found that the veteran's claim is well grounded pursuant to 38 U.S.C.A. § 5107 in that his claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Once it has been determined that a claim is well grounded, VA has a statutory duty to assist the veteran in the development of evidence pertinent to that claim. After reviewing the record, the Board is satisfied that all relevant, available evidence is on file and the statutory duty to assist the veteran in the development of evidence pertinent to his claim has been met. 38 U.S.C.A. § 5107. In order to be entitled to service connection for disease or disability, the evidence must reflect that a chronic disease or disability was either incurred in or aggravated by military service. 38 U.S.C.A. § 1110. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). The evidence above includes service medical records showing that just before separation from service, the veteran had a twisted left ankle. A VA physician diagnosed the veteran with degenerative joint disease of the left ankle, and concluded that the condition was likely the result of the in- service injury which caused the sprain. As such, the Board concludes that service connection is warranted. ORDER Entitlement to service connection for degenerative joint disease of the left ankle is granted. REMAND 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. On his application for service-connected benefits in November 1991, and during a June 1997 hearing before the undersigned Board member, the veteran indicated that while in service, he was hospitalized at a naval hospital at Camp Zama in Atsugi, Japan, for three months for back and neck injuries sustained in a motorcycle accident. In this regard, the Board notes that when this claim was remanded in June 1994, the RO was requested to attempt to obtain the records in question, but that the National Personnel Records Center replied in February 1995 that all records in the veteran's personnel and medical file had already been provided. Although additional attempts to locate the records in question have been made through the service department, the Board notes that the duty to assist includes obtaining available sick call reports, and available treatment records directly from military facilities where the veteran indicated that he was treated during service. Sheed v. Derwinski, 2 Vet. App. 255, 259 (1992). As such, the Board is of the belief that further attempts should be made to locate the medical records referred to by the veteran. Of record is a March 1992 VA psychiatric examination report, indicating a diagnosis of PTSD. In the report, it was detailed that the veteran had witnessed a disturbing incident in which a Bola-Bola gang member had committed an atrocity to a teenage girl, from which the veteran continued to be bothered. In the April 1992 action on appeal, the RO denied entitlement to service connection for PTSD based upon a conclusion that service connection for PTSD was not in order as the veteran had not presented evidence of a stressor sufficient to produce PTSD in almost any person. The determination as to the sufficiency of a stressor is a medical determination, and not one to be made by the adjudicator. Service connection may be granted for PTSD if the evidence establishes that PTSD was incurred in service or as the result of events experienced during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Notwithstanding the lack of a diagnosis of PTSD during service, service connection may be granted if all of the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 1991 & Supp. 1997); 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, 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. 38 C.F.R. § 3.304(f) (1996). The VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of PTSD claims 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). The Board notes further that the criteria for rating psychiatric disabilities was changed effective November 7, 1996. Under the new criteria, mental disorders are to be consistent with the Diagnostic and Statistical Manual of Mental Disorders (DSM) IV. 38 C.F.R. § 4.125 (1996). Previously, mental disorders were evaluated pursuant to DSM III, 38 C.F.R. § 4.125 (1995). At the time VA adjudication of this case began, DSM-III-R criteria for PTSD had been incorporated by the VA Adjudication Procedure Manual, M21-1. DSM-III-R 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, e.g., serious threat to one’s life or physical integrity; . . . or seeing another person seriously injured or killed as the result of an accident or physical violence.” DSM-III-R at 247-48. However, the diagnostic criteria for a stressor now in effect for VA adjudication under DSM-IV differ substantially from those in DSM-III-R. DSM IV defines stressors as a traumatic event in which both of the following were present: (1) 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 others. (2) the person’s response involved intense fear, helplessness, or horror. Quick Reference to the Diagnostic Criteria from DSM IV (Michael B. First, M.D., editor, 1994). The Court has recently addressed the effect of the change to DSM IV on claims for PTSD in Cohen v. Brown, No. 94-661 (March 7, 1997). In that case, the Court pointed out that the requirement that a stressor be outside the range of usual human experience that would evoke significant symptoms of distress in almost anyone had been dropped in DSM IV. The Court made the following holding: . . . the Court takes judicial notice of the effect of this shift in diagnostic criteria. The major effect is this: the criteria have changed from an objective (“would evoke. . . in almost anyone”) standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard. The criteria now require exposure to a traumatic event and a response involving intense fear, helplessness, or horror. A more susceptible individual may have PTSD based on exposure to a stressor that would not necessarily have the same effect on “almost anyone.” The sufficiency of a stressor is, accordingly, now a clinical determination for the examining mental health professional. Cohen, slip. op. at 38-39. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran applies unless congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Thus, the Board is of the opinion that the claim must be returned for consideration by the RO under the new criteria. Therefore, pursuant to VA’s duty to assist the appellant in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997); 38 C.F.R. § 3.103(a) (1996), the Board is deferring adjudication of the issues of entitlement to service connection for PTSD, back and neck disorders pending a remand of the case to the RO for further development as follows: 1. The RO should request the veteran to identify all physicians who have treated him for psychiatric disorders, or for neck and back disorders since July 1994. The RO should then obtain medical records from all sources identified by the appellant which are not already of record. In addition, attempts should be made, by contacting the facility directly, to find any additional service medical records pertaining to the veteran from the United States Naval Hospital at Camp Zama in Atsugi, Japan during 1970. 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 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, 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 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 impossible or an onerous task. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. The RO schedule the veteran for a psychiatric examination by a board of two VA psychiatrists who have not previously seen or treated him. Any appropriate studies, including PTSD sub scales are to be performed. The claims file and a copy of this remand must be made available to and reviewed by the examiners prior to completing their examinations. The examiners must be requested to express an opinion as to the correct diagnosis to account for the veteran’s psychiatric symptomatology reported in service, and whether any psychiatric disorder currently found on examination is related thereto. If the examiners believe that PTSD is the appropriate diagnosis they should specify whether the alleged stressor was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in- service alleged stressors sufficient to produce PTSD by the examiner. Any and all opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning (GAF) Score which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders and explain what the assigned score means. 4. If additional service medical records are obtained pertinent to treatment of the veteran's back and neck in 1970, the RO should arrange for an examination by an orthopedic surgeon in order to determine the nature and etiology of any back and neck disabilities found to be present. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior to conduction and completion of the examination. The examiner should conduct any testing deemed necessary. The results of all testing should be fully reported. In conjunction with a review of the veteran's claims file, including the new records, it is requested that the examiner render an opinion as to whether it is at least as likely as not that any currently diagnosed back and/or neck disorders are related to injuries described in newly located service medical records. Any opinion(s) expressed must be accompanied by a complete rationale. 5. Thereafter, the RO should review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issues of entitlement to service connection for PTSD, back and neck disorders. 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 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. RONALD R. BOSCH Member, Board of Veterans’ Appeals 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 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) (1996). - 2 -