BVA9507716 DOCKET NO. 93-12 833 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for post- traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from July 1968 to January 1971. By rating decision of April 1986, service connection was denied for post-traumatic stress disorder. That decision became final in the absence of a timely appeal. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 1993 notice of the St. Petersburg, Florida Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which held no new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for post-traumatic stress disorder. The Board's decision is limited to the issue developed for appellate review. It is apparent from the record that the appellant has raised a claim for an increased evaluation for service-connected hearing loss. As such issue is currently under development at the RO and has not been developed for appellate review, it is not included for consideration in this document. Kellar v. Brown, 6 Vet.App. 157 (1994). REMAND Service records indicate the appellant served as a communications center specialist and radio operator in Vietnam for approximately one year and eight months. The appellant has further reported that he served as a courier and perimeter guard, and participated in combat operations during such time. Military records further indicate he was awarded the Bronze Star Medal, the Republic of Vietnam Campaign Ribbon with Device, the Republic of Vietnam Gallantry Cross Unit Citation with Palm, the Republic of Vietnam Civil Action Unit Citation, the Army Commendation Medal, the Good Conduct Medal, the Meritorious Unit Emblem, the National Defense Service Medal, and the Vietnam Service Medal with one silver and one bronze service star. However, additional personnel records indicating duty assignments and military specialities are not currently associated with the claims folder. The appellant filed an initial application for disability compensation for entitlement to service connection for post- traumatic stress disorder in January 1985. Following a March 1986 VA psychiatric examination indicating a diagnosis of chronic generalized anxiety reaction, entitlement to service connection for post-traumatic stress disorder was denied in an April 1986 rating decision on the basis that such disorder was not shown on the most recent examination. He was given notice of that action in May 1986. The appellant expressed disagreement with that decision later that month, and a statement of the case was issued. However, a timely substantive appeal was never received by the RO, and as such, the April 1986 rating decision became final in May 1987. In February 1993, the appellant applied to reopen his claim for entitlement to service connection for post-traumatic stress disorder, which was denied in a March 1993, on the basis that no new and material evidence had been submitted to reopen such claim. The appellant expressed disagreement with such decision that month. In the appellant's May 1993 substantive appeal, he requested that the RO obtain VA outpatient treatment records dated since 1986, as he reportedly was told by a VA physician at that time that he had "borderline" post-traumatic stress disorder which was expected to worsen. Moreover, both the appellant and his representative have requested a current VA psychiatric examination in order to evaluate current reported symptomatology. The Board has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court of Veterans Appeals (Court) has held the duty to assist involves obtaining relevant medical reports and examinations where indicated by the facts and circumstances of the individual case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). See also Counts v. Brown, 6 Vet.App. 473 (1994), (even absent the submission of new and material evidence, "the duty to assist may still be triggered under appropriate circumstances." ) (citing White v. Derwinski, 1 Vet.App. 519 (1991) and Ivey v. Derwinski, 2 Vet.App. 320 (1992)); Gowen v. Derwinski, 3 Vet.App. 286, 289 (1992) (a persuasive single judge opinion stating duty to assist still applies absent a showing of new and material evidence when either the appellant has specifically requested assistance in obtaining probative medical records, or when evidence already before the board raises sufficient notice of possible probative private medical records). The appellant and his representative have repeatedly requested the Board to attempt to obtain the above mentioned post-service medical records not currently associated with the claims folder prior to making a final determination on appeal. Pursuant to the aforementioned recent decisions of the Court, the Board agrees that such an attempt for the reported relevant records must be made for a complete and adequate decision. As the case is otherwise in REMAND status, the Board agrees with the appellant and his representative that a current VA psychiatric evaluation would be helpful in order to evaluate current reported symptomatology. Accordingly, the case is REMANDED for the following developments: 1. The RO should contact the National Personnel Records Center and attempt to obtain additional copies of the appellant's service personnel records not already associated with the claims folder, including but not limited to Department of the Army (DA) form 2-1. The appellant's DD form 214 indicates active duty from July 1968 to January 1971, with one year and eight months of service in Vietnam. 2. The veteran should be provided additional opportunity to set forth stressors from service which, in his view, caused his claimed post-traumatic stress disorder. Any listing of stressors should, if possible, be verified by the RO through whatever means, including, as appropriate, referral to the United States Army and Joint Services Environmental Support Group (ESG). 3. The RO should contact the VA Medical Center in Miami, Florida and attempt to obtain copies of any inpatient or outpatient medical treatment records, including any records from the mental hygiene clinic, dated since January 1986. The claims folder should contain documentation of the attempts made to obtain the records. If records are sought but not received, the appellant and his representative should also be informed as to the negative results. 38 C.F.R. § 3.159 (1994). 4. The RO should contact the appellant to determine the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided him with additional relevant treatment not already reported to the RO or the Board. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If treatment is reported and those records are not obtained, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1994). 5. The RO should then schedule the appellant for a psychiatric examination to determine whether post-traumatic stress disorder is currently manifested, and whether it is attributable to his wartime service. In particular, the examiners are requested to differentiate between symptomatology attributable to post- traumatic stress disorder, if found, from any other psychiatric symptomatology found. The report of examination should be based on a complete and accurate description of events during service, and should contain a detailed social, industrial, and military history, as well as any clinical findings upon which a diagnosis is based. All subjective complaints reported by the veteran, as well as an objective analysis of symptomatology should be reported in detail. If these matters cannot be medically determined without resort to mere conjuncture, this should be commented on by the examiner in his report. The claims folder should be made available to the examiner for review purposes prior to the psychiatric examination. The psychiatric examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. If post-traumatic stress disorder is found, the examiner should specifically list the stressors identified as causing the disorder. 6. Thereafter, the RO should re-adjudicate the appellant's claim for whether new and material evidence to reopen a claim of service connection for post traumatic stress disorder has been submitted. This review should, of course, include consideration of any evidence obtained pursuant to this remand. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in the REMAND decision, detailing the requested development, have, in fact, been substantially complied with. When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in the claim for entitlement to service connection for post-traumatic stress disorder, pending completion of the requested development. MICHAEL D. LYON 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).