Citation NR: 9800647 Decision Date: 01/12/98 Archive Date: 01/21/98 DOCKET NO. 94-29 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disability. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a gastrointestinal disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active military service from March 1973 to October 1975. This matter comes before the Board of Veterans’ Appeals (the Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. A transcript of the November 1997 Board hearing is of record. The issues of service connection for a right knee disability, a psychiatric disability and a gastrointestinal disability are discussed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the evidence is sufficient to link current right knee, psychiatric and gastrointestinal disabilities to service. 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 new and material evidence to reopen claims of service connection for a right knee disability, a psychiatric disability and a gastrointestinal disability has been presented. FINDINGS OF FACT 1. The RO in July 1983 denied service connection for a psychiatric disorder, a right knee disorder and a stomach disorder which the veteran did not appeal. 2. Evidence received since the July 1983 RO decision is relevant as it includes a clear diagnosis of psychiatric disability including post-traumatic stress disorder (PTSD) related to events in service and information and testimony from the veteran regarding current right knee and gastrointestinal disorders related to occurrences in service. CONCLUSION OF LAW Evidence received since the July 1983 decision of the RO denying service connection for a psychiatric disorder, a right knee disorder and a stomach disorder is new and material and the claims are reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1997); 38 C.F.R. § 3.156(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Following the RO determination in July 1983, an RO determination in late 1992 from which the current appeal arose appeared to consider this claim without regard to any finality in the July 1983 RO decision. Thereafter, the RO adequately addressed the Board’s concerns regarding due process. After careful review of the record, the Board finds that the claim should be reopened and afforded a de novo review. Evans v. Brown, 9 Vet. App. 273 (1996); Cox v. Brown, 5 Vet. App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The Board has noted that the claims for service connection were the subject of a final RO decision in 1983. Though final based on the evidence then of record, the claims may be reopened if new and material evidence has been submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991); 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). In determining whether new and material evidence has been submitted, the Board is obligated to review all evidence submitted since the last final disallowance on any basis which, in this case, is considered to have been the July 1983 RO decision. Evans, supra. After careful review of the record, the Board finds that the evidence received since this decision is new and material with respect to claims for service connection and that the claims should be reopened. In determining if the reopening of a claim is warranted, the Board is not required to review the additional evidence with regard to the prior evidence of record in every instance. The new evidence must be viewed in light of the specific elements specified as a basis for the last final disallowance of a claim. Evans, 9 Vet. App. at 284-86, clarifying and affirming Glynn v. Brown, 6 Vet. App. 523, 528-29 (1994). The essential inquiry initially is whether the evidence is new. That is, evidence neither previously of record nor cumulative of such evidence and, if new, whether it is probative of an issue at hand. The “issue at hand” being a specified basis for the last final disallowance. Then, if the first two elements area satisfied, the new evidence must be viewed with the evidence previously of record to determine if a reasonable possibility of a different outcome is presented. The July 1983 RO decision denying service connection for a psychiatric disorder found, in essence, that evidence of a chronic psychiatric disorder was not shown in service. The same rationale was relied upon in denying service connection for right knee and stomach disorders. Psychiatrically, situational depression was reported in service in September 1975 following an earlier reference in May 1975 to the veteran seeking medical assistance for a “personal problem,” and on the separation examination clinical evaluation depression and anxiety were reported. Regarding the right knee, the service medical records reported complaints in 1975, several months before separation. There were coexisting complaints of a gastrointestinal nature and again in 1978. Thereafter, an unremarkable military physical examination in 1977 and a 1979 military outpatient report for an unrelated problem were of record. Her initial application for service connection, filed in 1983, listed treatment during service. Thus, the newly presented evidence must be probative of the critical elements of a nexus to service for a currently diagnosed psychiatric, right knee or gastrointestinal disability, which requires competent medical evidence. The additional evidence clearly meets this test. Regarding a psychiatric disability, pertinent evidence consisting of VA medical records including a medical statement in 1997 from the veteran’s VA clinician which supplemented the veteran’s sworn testimony and private psychiatric opinion refers to events in service related to the current diagnosis of PTSD. Further, there is a 1996 statement from her private therapy provider linking coexisting major depressive disorder to service. This evidence is probative evidence of a clear diagnosis of chronic psychiatric disability including PTSD currently, and relating the disability to service which are essential elements to establish service connection previously absent. Further, since the claim was initially adjudicated, the VA issued applicable VBA ADJUDICATION PROCEDURE MANUAL, M21-1 (Manual M21-1) provisions regarding development in such claims based upon sexual assault. Manual M21-1, Part III, para. 5.14c. Regarding a right knee disability, the additional evidence augmenting the record is probative of critical elements absent at the time of the 1983 RO adjudication of the claim. There is a VA compensation examination in 1992 reporting bilateral chondromalacia patella which viewed with the sworn testimony and pertinent history recalled in other recent medical treatment records and previous medical reports, establishes a reasonable possibility of a different outcome tan reached by the RO in 1983. There is satisfactory evidence of continuity of symptomatology. Therefore, the new evidence, being probative, is material to the question of service connection. The newly presented evidence is not solely cumulative and includes competent medical evidence. The same reasoning applies regarding the issue of service connection for a gastrointestinal disability variously diagnosed since service and currently characterized as irritable bowel syndrome. Significant is a private medical opinion in 1987 that linked symptoms then viewed as gastritis or peptic ulcer to a predominant psychiatric disorder. The issues are now intertwined with secondary service connection being available based upon incurrence or, more recently, by aggravation which is a liberalization of the permissible basis for secondary service connection. Thus, a de novo review is warranted. However, the Board is of the opinion that additional development is necessary because of the essential inquiries of medical nature that must be made. Regarding a psychiatric disability, the record does not show the opinion of a nexus to service for major depression as having been the result of a review of the relevant record rather than reliance upon the veteran’s self reported history. Further, although there is a clear diagnosis of PTSD, the event recalled as an inservice stressor was only recently mentioned whereas preservice stressors have been consistently recalled and her PTSD is linked to both instances of abuse. To the extent that the claim relies upon inservice sexual assault, current development procedures recognize the importance of medical interpretation of contemporaneous clinical information as it might serve to establish the existence of an otherwise unreported event. See for example Manual M21-1, Part III, para. 5.14c(9). The Board must observe that the veteran’s current clinical records mention bilateral knee symptoms but principally for the left knee. At the recent Board hearing, there was testimony regarding VA medical opinion linking the right knee on a secondary basis. The service medical records are equivocal regarding a right knee disability. ORDER New and material evidence having been submitted, the claims of entitlement to service connection for a psychiatric disability, a right knee disability and a gastrointestinal disability are reopened; the benefit sought on appeal is granted to that extent. REMAND In view of the decision reopening the appellant's claims for service connection for a psychiatric disability, a right knee disability and a gastrointestinal disability, the RO must readjudicate the claims without regard to the finality of the July 1983 RO decision, based on all evidence, both new and old. The Board has previously noted the evidence of significance regarding the disabilities at issue. However, without additional development for reasons mentioned above, and as set forth below, the Board concludes that the record is not adequately developed to permit an informed determination. The Board has referred to the veteran’s information concerning stressors in service but that an attempt to verify the occurrence as claimed has not been undertaken under the current development guidelines for such claims. Accordingly, additional development in this regard is necessary. Manual M21-1, Part III, para. 5.14c. Without current comprehensive examination to provide a definitive diagnosis regarding the right knee and gastrointestinal system and opinions as to the relationship between the respective complaints during service and current disability, the Board concludes that the record is not adequately developed to permit an informed determination. Where the record before the Board is inadequate to render a fully informed decision on the issue under consideration, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet. App. 371, 377 (1994). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the National Personnel Records Center and ask that a search be conducted to locate any additional service medical records for the veteran. Of significance are records of any contact/evaluation she may have had with mental hygiene clinic personnel at the Ft. Jackson, South Carolina medical facility from late 1974 to her discharge from service in October 1975. 2. The veteran should be asked to identify all sources of treatment for her psychiatric disorder, right knee disorder or gastrointestinal disorder since service, VA or private, including periods of treatment, dates, names of treating physicians, and addresses. The RO should obtain treatment records from all sources identified which are not already of record. In particular, the RO should obtain all VA treatment records to the present time, particularly regarding the right knee to include any recorded impression as to an etiology therefor. Also significant is any record of the veteran’s treatment following a reported suicide attempt in 1980. 3. The RO should complete any additional development necessary to comply with the current development guidelines set forth in Manual M21-1, Part III, para. 5.14c in the manner suggested therein. 4. Following the above, the RO should schedule the veteran for a VA psychiatric examination by an examiner who has not previously examined her, if possible to determine whether the veteran has PTSD that is related to an inservice stressor or other psychiatric disorder linked to service. The psychiatrist should conduct the examination with consideration of the current criteria for PTSD. The examination report should include a detailed account of all pathology found to be present. If a diagnosis of PTSD is appropriate, the examiner should specify the stressor(s) that caused the disorder and the evidence relied on to establish the existence of the stressor(s). The examiner must also comment explicitly upon whether there is a link between such inservice stressor or stressors and current symptoms. The examiner should also comment on the significance, if any, of the psychiatric complaints in service to any current psychiatric disability found to be present. The report of the examination should include rationale for all opinions expressed. All necessary special studies or tests should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. 5. The veteran should be scheduled for a VA orthopedic examination to determine the nature and probable etiology of any right knee disability found. The examiner should be asked to provide an opinion as to the degree of probability that any current right knee disability is related to the right knee complaints reported in service. The examiner should also be asked to provide an opinion as to the likelihood of any relationship, either causally or on the basis of aggravation, between the veteran’s service-connected left knee disability and any right knee disability found to be present. The report of the examination should include rationale for all opinions expressed. All necessary special studies or tests should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. 6. The veteran should be scheduled for a VA gastrointestinal examination to determine the nature and probable etiology of any gastrointestinal disability found. The examiner should be asked to provide an opinion as to the degree of probability that any current gastrointestinal disability is related to the gastrointestinal complaints reported in service. The report of the examination should include rationale for all opinions expressed. All necessary special studies or tests should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. 7. The RO should review the examination reports and determine whether the findings comply with the requirements above. If not, any deficient report should be returned to the examiner for correction. Thereafter, the RO should readjudicate the veteran's claim for service connection for a psychiatric disability, a right knee disability and a gastrointestinal disability on a de novo basis. If any benefit sought on appeal is not granted to the satisfaction of the veteran, she and her representative should be furnished an appropriate supplemental statement of the case which reflects the consideration undertaken and provided the applicable period to respond. The case should then be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board does not intimate, in any manner, the final outcome warranted with respect to the matter at issue. No action is required of the veteran until she is notified. 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. 1996) (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. Mark J. Swiatek Acting 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 -