Citation Nr: 9806483 Decision Date: 03/04/98 Archive Date: 03/20/98 DOCKET NO. 93-21 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a psychiatric disorder on the basis that rating actions dated in November 1968, August 1969, April 1975, and February 1987 were clearly and unmistakably erroneous. 2. Entitlement to service connection for a psychiatric disorder on the basis of the submission of new and material evidence. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to March 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board remanded the case in August 1995 for additional development. Specifically, the RO was requested to obtain additional service medical records as well as any available private medical records for the appellant and arrange for her to be examined by a psychologist and a psychiatrist in order to determine the nature and severity of any psychiatric illness. REMAND Service Connection for a Psychiatric Disorder. It is contended by and on behalf of the veteran that service connection for a psychiatric disorder is warranted because her chronic anxiety neurosis became manifest during service and she continues to undergo psychiatric treatment to the present. Specifically, the appellant contends that she was sexually assaulted by two women during her period of service in Germany and all of her psychiatric problems stem from this incident. The Board notes that during the pendency of this appeal, VA issued revised regulations amending the section of the VA Schedule for Rating Disabilities on Mental Disorders. See 61 Fed.Reg. 52695-52702 (1996). Although the instant case is a claim of service connection for a psychiatric disorder and not one of an increased rating of an already service- connected disorder, the Board notes that the revised mental disorders regulations apply DSM-IV versus the previously applied DSM-III in the recognition and characterization of a particular mental disorder, including PTSD. To the extent that any change in such application affects the issue of service connection for such disorder, that change would have an impact on the current issue on appeal. In view of the intended effect of this action to ensure that the rating schedule uses current medical terminology, unambiguous criteria, and that it reflects medical advances which have occurred since the last review, in an effort to extend to the veteran every equitable consideration, the Board believes that the veteran’s claim should be evaluated pursuant to the revised regulations, and that the veteran be afforded a VA psychiatric examination. 38 C.F.R. § 3.655 addresses the consequences of the veteran’s failure to attend a scheduled medical examination. Regarding noncombat stressors, the Court has recently held that “credible supporting evidence” means that the veteran’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The VA Adjudication Procedure Manual M21-1 (M21-1) provides that the required “credible supporting evidence” of a noncombat stressor “may be obtained from” service records or “other sources.” Manual M21-1, part VI, 11.38. Specific to claims based upon personal assault, M21-1, part III, 5.14c provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. The veteran’s representative contends that this claim has not been adequately developed in accordance with the actions requested by the Board in the August 1995 remand. Specifically, the representative claims that, although October 1967 inpatient treatment records from the Army Hospital in Bad Cannstatt, Germany, were obtained, there are additional service medical records for outpatient follow-up treatment subsequent to this hospitalization. The representative further alleges that the October 1996 VA psychiatric examination was inadequate because the service medical records of the follow-up treatment from the October 1967 hospitalization were not available for review by the examiners, the examiners failed to specify that the veteran’s entire claims file was reviewed, and a diagnosis was not provided by the psychiatrist. The October 1996 report of VA psychological examination reflects that the veteran’s test results were of little interpretive value other than to indicate that she was not being fully honest in her presentation of symptoms. The psychologist noted that no diagnosis could be supported on the basis of this evaluation due to the veteran’s apparent attempt to present herself as more disturbed than she actually was. The psychologist commented that the veteran was not suffering from any sort of psychotic disorder or other significant mental illness. Significantly, the psychiatric examination report notes that the veteran’s final diagnostic formulation would be deferred pending her scheduled psychological testing and evaluation by a psychologist. However, there is no evidence of record to indicate that the psychiatrist reviewed the psychological examination report or provided a final diagnosis. Accordingly, the Board is of the opinion that another thorough and contemporaneous psychiatric examination would provide valuable assistance in rendering a decision in this case. Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991); Littke v. Derwinski, 1 Vet. App. 90 (1990). Clear and Unmistakable Error. It is further contended that the original rating decision, dated in November 1968, and subsequent rating decisions were clearly and unmistakably erroneous (CUE) because the VA failed to properly develop the veteran’s claim and recognize that she had been accepted into the military with no defects and acquired a nervous condition during active duty that developed into a chronic anxiety neurosis. However, upon consideration of the additional service medical records which were not previously contained in the claims file, the fact that additional service medical records may be available, and the provisions of 38 C.F.R. § 3.156(c), the Board will defer any consideration of this issue pending the complettion of the action requested below. Accordingly, this case is REMANDED to the RO for the following: 1. The RO should contact the National Personnel Records Center and request that it provide copies of the veteran’s service personnel records, including performance evaluations, during her period of active service. 2. In a further attempt to obtain information, the RO should contact all appropriate sources, including the United States Army Hospital in Bad Cannstatt, Germany, to obtain all inpatient and outpatient treatment records not already of records. 3. The RO should contact the veteran and determine the location of all psychiatric treatment she has received since service. After securing any necessary authorization from the veteran, the RO should secure copies of all treatment records identified which are not already of record. 4. At the same time, the RO should request from the veteran a comprehensive statement of potential alternative sources for supporting evidence regarding the stressor she alleges occurred in service. The RO inquiry should include possible sources listed in M21-1, part III, 5.14c(5). A field examiner should be utilized if a personal interview is deemed necessary to obtain any supporting evidence or if specific records or statements sought cannot otherwise be provided. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event and that she must be as specific as possible because without such details an adequate search for supporting information cannot be conducted. Thereafter, the RO should request any supporting evidence from alternative sources identified by the veteran. 5. The RO should review the file and prepare a summary including all associated documents and then make a specific determination, in accordance with the provisions of 38 C.F.R. § 3.304(f), with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, what was the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 6. After the foregoing development has been completed to the extent possible, the RO should return the claims file to the psychiatrist who performed the October 1996 examination and request that he review the veteran’s medical history and provide the opinions as requested below. If deemed necessary by the examiner, the appellant should be scheduled for another psychiatric evaluation. If a psychiatric disorder is diagnosed, it is requested that the psychiatrist render opinions regarding the following: (a.) When was any psychiatric disability currently diagnosed initially clinically manifested? (b) If not initially manifested during service or in the case of a psychosis within one year thereafter, what is the clinical significance of the inservice psychiatric findings; the diagnosis of schizophrenic reaction rendered at the VA hospital located in East Orange, New Jersey, on November 15, 1968; and the diagnosis of psychoneurosis, anxiety reaction, in remission rendered at the VA hospital in Montrose, New York, on November 19, 1968, as they relate to any currently diagnosed psychiatric disorder. The examination report must reflect a review of pertinent material in the claims folder. The examiners should integrate previous psychiatric findings and diagnoses with current findings to obtain an accurate picture of the veteran's psychiatric status. The examiners should be informed of the stressor(s) that have been verified. The report of examination should include the complete rationale for all opinions expressed. The claims folder must be made available to the examiner for review in conjunction with the examination. 7. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the veteran’s claim of entitlement to service connection for a psychiatric disorder and her claim that the rating actions dated in November 1968, August 1969, April 1975, and February 1987 were clearly and unmistakably erroneous. The RO should specifically consider 38 C.F.R. § 3.156(c) in making its determination. If the claim remains denied, the veteran and her representative should be furnished a supplemental statement of the case. They should be afforded the appropriate period of time within which to respond thereto, at their option, as provided by governing regulation. Then, if otherwise in order, the case should be returned to the Board after compliance with all requisite appellate procedures. 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. GARY L. GICK Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This 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) (1997). - 2 -