Citation NR: 9735069 Decision Date: 10/17/97 Archive Date: 10/24/97 DOCKET NO. 95-19 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been received to reopen the claim for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. E. Padoll, Associate Counsel INTRODUCTION The veteran had active military service from December 1970 to July 1972. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 1994 regional office (RO) rating decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he developed PTSD as a result of his military service. He states that during service he was stationed in Vietnam. Moreover, he states that during his tour of duty in Vietnam he witnessed stressful events that have left an impact on his present life. Furthermore, the veteran states that he has submitted new and material evidence in his case. As such, the veteran contends that service connection for PTSD should be granted. 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 evidence supports reopening the veteran’s claim for entitlement to service connection for PTSD. FINDINGS OF FACT 1. The veteran’s claim for service connection for PTSD was finally denied in an October 1981 RO rating decision. 2. The evidence added to the record since the October 1981 rating decision consists of outpatient treatment records, private medical records, hospitalization reports, and hearing testimony which are so significant that they must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. Evidence received since the RO denied entitlement to service connection for PTSD in October 1981 is new and material. 38 U.S.C.A. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156(a) (1996). 2. The decision of the RO in October 1981 denying entitlement to service connection for PTSD has now been reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7015; 38 C.F.R. § 3.304(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that in a decisions dated in October 1981, the veteran’s claim for service connection for PTSD was denied on the basis that there was no confirmed diagnosis of PTSD at that time. In an attempt to reopen his claim, the veteran has submitted Department of Veterans Affairs (VA) outpatient treatment records, private medical records, VA hospitalization reports, VA examination reports, and hearing testimony. The private medical records, as well as the VA outpatient treatment records and examination reports have revealed symptoms and diagnosis of PTSD. Thus, as there is now a diagnosis of PTSD as a psychiatric disorder, the question of whether this disorder is related to service arises. This evidence constitutes new and material evidence to reopen the claim. The Board finds that a re-evaluation of the evidence of record, particularly in light of the medical evidence, is in order. ORDER New and material evidence having been received to reopen the claim for service connection for PTSD; the benefit sought on appeal is allowed to this extent. 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. The Board notes that where new and material evidence has been submitted, the case is reopened and it must be evaluated on the merits of the veteran’s claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet. App. 140 (1991). Moreover, the United States Court of Veterans Appeals (Court) has held that if the Board’s initial de novo consideration of the merits of a reopened claim might be prejudicial to the appellant, the case must be remanded to the RO for initial de novo consideration. Bernard v. Brown, 4 Vet. App. 384 (1995). That is the situation here. Service connection for PTSD 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. 38 C.F.R. § 3.304(f) (1996). The RO must attempt to verify the alleged stressors with the U.S. Armed Services Center for Research of Unit Records (USASCRUR). The record reveals that the veteran has provided the RO with some details and incidents pertaining to what he claims are stressors. In addition, the Board notes that the RO submitted a letter to USASCRUR in December 1993. However, all of the details provided by the veteran were not incorporated into the letter. Furthermore, in it’s response, dated in June 1994, USASCRUR stated that additional information was needed from the veteran. Moreover, USASCRUR provided the RO with specific information necessary to confirm the veteran’s stressors and they provided the RO with a variety of different ways to obtain the information. The record reveals, though, that the RO has neither attempted to contact the veteran and request that he provide additional information, nor has the RO attempted to obtain information through any of the other sources provided by USASCRUR. Also, the veteran’s representative has argued that the veteran should be afforded an opportunity to provide additional information in support of his claim. The provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of PTSD 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 USASCRUR, such development is mandatory. 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) (1996), the Board is deferring adjudication of the issue of entitlement to service connection for PTSD pending a remand of the case to the RO for further development as follows: 1. As was suggested by the USASCRUR Director in his June 1994 letter, the RO should request Morning Reports (MR’s), DA Form 1, from the Director, National Archives and Records Administration (NARA), ATTN: NCPMA-O, 9700 Page Boulevard, St. Louis, Missouri 63132. The RO should also request a copy of the veteran’s DA Form 20, a copy of his Official Military Personnel File (OMPF) from NARA, ATTN: U.S. Army Liaison, in St. Louis. 2. After obtaining the above requested information from the Director of NARA, the RO should forward it together with copies of the veteran’s obtained service personnel records, a copy of his record of service (DD-214), and a copy of his complete stressor statement, to the U.S. Armed Service Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Springfield, Virginia 22150. The USASCRUR should be requested to verify the occurrence of the incidents and any indication of the veteran’s involvement therein, and whether the veteran engaged in combat. If the USASCRUR is unable to provide verification of the incidents, it should be asked to identify any agency or department that could provide such information and the RO should conduct follow-up inquires accordingly. Any obtained information should be associated with the claims file. 3. Following receipt of the USASCRUR’s reports, 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 USASCRUR. 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 folder. 4. If a stressor or stressors have been verified, 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. Any appropriate studies, including PTSD sub scales are to be performed. The claims file and a separate copy of this remand must be made available to and reviewed by the examiners prior to conduction and completion of their examinations. In determining whether or not the veteran has PTSD due to an in-service stressor, the examiners are hereby notified that only the verified history detailed in the reports provided by the USASCRUR and/or the RO may be relied upon. If the examiners believe that PTSD is the appropriate diagnosis, they must specifically identify which stressor(s) detailed in the USASCRUR’s and/or the RO’s report is/are responsible for that conclusion. The examiners should specify (1) whether each alleged stressor found to be established by the record 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 stressors found to be established by the RO and found to be sufficient to produce PTSD by the examiners. 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. 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 particular, the RO should review the psychiatric examination reports to verify that any diagnosis of PTSD was based on the verified history provided by the USASCRUR and/or the RO. If the examiners relied upon a history which was not verified, those examination reports must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of PTSD, related to service, based on an examination which relied upon an unverified history is inadequate. West, 7 Vet. App. at 77. 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should adjudicate the issue of entitlement to service connection for PTSD on a de novo basis, with consideration of all the evidence of record, without regard to the prior denial. If the benefit sought 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. 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 -