BVA9503813 DOCKET NO. 93-10 910 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for chronic migraine headaches. 2. Entitlement to service connection for residuals of a head wound, to include visual disturbances. 3. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from November 1968 to January 1972. In a September 1993 statement, the veteran's representative raised the issue of entitlement to service connection for dental trauma. He stated he did not believe, based on a review of the claims folder, that the veteran had been notified of the regional office's (RO's) February 1976 decision which denied the claim of entitlement to service connection for dental trauma. This issue has not been developed for appellate consideration. Since the issue is not inextricably intertwined with any issue on appeal, it is referred to the RO for appropriate action. Furthermore, in a March 1992 statement, the veteran made reference to disability as a result of medical treatment he had receive. It is not clear whether he is alleging that he has additional disability due to VA treatment or private treatment. It is possible that he is raising the issue of entitlement to benefits under 38 U.S.C.A. § 1151 (West 1991). This claim is also not inextricably intertwined with the current appeal and is referred to the RO for any appropriate action. In addition, in the September 1993 statement, the veteran's representative also appeared to raise the issue of clear and unmistakable error in the prior rating decisions. However, neither the veteran nor his representative have provided the specific contentions with regard to this claim that the United States Court of Veterans' Appeals (Court) has required. See Fugo v. Brown, 6 Vet.App. 40 (1993). The claim is not inextricably intertwined with the current appeal and is referred to the RO for appropriate action. REMAND On the September 1992 VA examination, the psychiatric diagnosis was anxiety disorder; there was no diagnosis of post-traumatic stress disorder. The examiner noted that the veteran's psychiatric problems appeared to center around an automobile accident in which he was involved in 1991 and not to be related to any incidents that may have occurred in Vietnam. The examiner concluded that a connection between the veteran's present psychiatric diagnosis, anxiety disorder, and any experiences he may have had in combat were not established. The veteran argues that the examiner inaccurately recorded his responses to questions. In the substantive appeal, the veteran asserted that the post-service automobile accident in which he was involved triggered flashbacks of his active military duty in Vietnam. The veteran maintained that he continues to experience such flashbacks and that they have gotten worse. In addition, according to the examination report, the examiner did not have access to the records of treatment that the veteran had received for his psychiatric problems from Stephen Giles, M.D.. The veteran's representative pointed out, in the September 1993 statement, that the examiner did not have access to these treatment records and requested that the case be remanded to accord the veteran a thorough examination at which time the examiner would have access to the records of the veteran's complete medical history. The Board believes that the veteran should be accorded such an examination. In the substantive appeal, the veteran asserted that he has received treatment for his psychiatric problems from Dr. Steven Giles and Dr. Maiden at the VA Medical Center in Johnson City, Tennessee. Although some records of recent treatment that the veteran received at the Mountain Home VA Medical Center in Johnson City, Tennessee are included in the claims file, it is not clear whether these documents are records of treatment that the veteran received from Dr. Giles or Dr. Maiden. In the September 1993 statement, the veteran's representative requested that, on remand, the veteran's outpatient treatment records be obtained and associated with the claims file. The Court has held that there is a continuing obligation on the VA to assist the veteran in developing the facts of his claim throughout the entire administrative adjudication. This obligation includes the duty to obtain records regarding the veteran's medical history. Murincsak v. Derwinski, 2 Vet.App. 363, 373 (1992). A review of the claims folder indicates that the RO has made numerous attempts to obtain the veteran's service medical records. However, the only service medical records which have been obtained and associated with the claims file are the Report of Medical Examination and the Report of Medical History which were completed at the time of the veteran's separation examination. According to the post-service records of inpatient and outpatient treatment that the veteran has received, the earliest record of the veteran's complaints of headaches and vision problems is the VA examination report, which is dated in September 1975. At that examination, the veteran reported that he began experiencing vision problems, followed by headaches, approximately one to two months after the in-service ambush in which he was involved in April 1970. However, the veteran has not received a recent VA general medical examination. Consequently, there is no medical opinion regarding whether the veteran has a current headache disability, visual disability, or other residuals of the alleged in-service wound to his head and whether or not there is any relationship between any present disabilities, the early post-service complaints, and the alleged in-service head injury. In the September 1993 statement, the veteran's representative requested that, on remand, the veteran be accorded a VA examination to include a medical opinion regarding the etiology of the veteran's present symptoms. In VA Form 1-646, Statement of Accredited Representation in Appealed Case, the veteran's local representative specifically stated that, if the veteran's personal hearing is not conducted due to cancellation, the veteran's failure to report, or some other reason, the local representative reserved the right to prepare written arguments on a supplemental VA Form 1-646. In the September 1993 statement, the veteran's national representative pointed out that the local representative had not been given the opportunity to submit additional argument after the veteran failed to report to the scheduled personal hearing. The national representative asserted in the September 1993 statement that review and presentation by the local representative is essential to the veteran's claim. The Board notes that, not only did the veteran fail to report to the scheduled personal hearing, but he also failed to report for the VA examination for post-traumatic stress disorder which was scheduled in May 1992. The Court has repeatedly stated that the veteran has a duty to cooperate in his appeal. In particular, the Court has said that VA's duty to assist is not a one-way street. If the veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet.App. 191 (1991); Hayes v. Brown, 5 Vet.App. 60, 68 (1993). In the present case, the Board recommends that the veteran be specifically notified of his legal obligation to cooperate. The Board concludes that further assistance to the veteran is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should again request that the service department conduct a search for any service medical records for the veteran. In addition, the service department should be requested to provide the supporting documentation for the award of the veteran's Purple Heart, which may reflect the nature of any injuries sustained. 2. The veteran should be contacted and requested to furnish a complete list of all medical personnel and facilities from which he has received treatment for his psychiatric disorder and for any residuals of the alleged in-service head wound that he sustained, including headaches and visual problems, since his separation from service. The Board is particularly interested in records of any treatment that the veteran may have received from Dr. Steven Giles and Dr. Maiden at the Mountain Home VA Medical Center in Johnson City, Tennessee. After obtaining the appropriate releases from the veteran where necessary, the health care providers should be contacted and requested to provide all treatment records in their possession pertaining to the veteran. If these records are unavailable, or are duplicates of those already on file, those facts should be annotated in the claims folder. Any available records should be associated with the claims folder. 3. Following the above, the veteran should be examined by a VA psychiatrist who has not previously examined him to determine the diagnosis of any current psychiatric disorder he may have. The report of examination should include a detailed account of all manifestations of psychiatric pathology found to be present. The examiner should consider the criteria for post-traumatic stress disorder. If there are psychiatric disorders other than post-traumatic stress disorder, the examiner should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If a diagnosis of post-traumatic stress disorder is appropriate, the examiner should specify the credible "stressors" that caused the disorder and the evidence upon which he or she relied to establish the existence of the stressor(s). The examiner should also describe which stressor(s) the veteran reexperiences and how he reexperiences them. All necessary special studies or tests including psychological testing are to be accomplished. The examination should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. The report of examination should include complete rationale for all opinions expressed. The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. 4. Following the above, the veteran should be accorded a VA general medical examination to determine the nature, extent, and etiology of any residuals of the alleged in-service head wound, including headaches and visual disturbances, that he may have. The report of examination should include a detailed account of all manifestations of any disorders found to be present. All necessary tests and examinations should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examination should be conducted in accordance with the diagnostic procedures outlined in the VA Physician's Guide for Disability Evaluation Examinations. The examiner is specifically requested to express an opinion as to whether any disability found on examination, including but not limited to a chronic migraine headache disability and a visual disability, was caused by, or is in any way related to, the alleged head wound that the veteran sustained during service. In answering this question, the examiner should review the entire claims file and cite in the examination report the specific medical reports used as a basis for the opinion. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The examiner should provide complete rationale for all conclusions reached. 5. With regard to the instructions set forth above, the RO should inform the veteran of his obligation to cooperate by providing the requested information to the extent possible and by reporting for the scheduled examinations. The RO should also inform the veteran that his failure to cooperate may result in adverse action pursuant to 38 C.F.R. § 3.655(b). 6. The RO should review the examination reports and determine if they are adequate for rating purposes and in compliance with this Remand. If not, they should be returned for corrective action. 7. Thereafter, the RO should formally adjudicate the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for chronic migraine headaches and the issue of entitlement to service connection for residuals of a head wound, to include visual disturbances. In addition, the RO should formally adjudicate the issue of entitlement to service connection for post-traumatic stress disorder and the issue(s) of service connection for any other psychiatric disorder(s) found on examination. The rating decision must contain a discussion of the application of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304(d) (1994). Following completion of these actions, and, if the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case which adequately informs the veteran of the reasons for the denial of his claims, including a discussion of the applicability of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304(d) (1994). The veteran and his representative must be afforded a reasonable period of time in which to respond. Thereafter, the case, in accordance with the current appellate procedures, should be returned to the Board for completion of appellate review. The purpose of this REMAND is to obtain clarifying evidence. No action is required of the veteran until further notice is issued. V. L. JORDAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), 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. 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) (1994).