BVA9506204 DOCKET NO. 93-12 289 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD), to include clear and unmistakable error. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Daniel J. McTavish, Associate Counsel INTRODUCTION The veteran had active service from May 1967 to May 1969. He served in Vietnam and was awarded the Vietnam Service Medal with two Bronze Service Stars and the Vietnam Campaign Medal. This matter came before the Board of Veterans' Appeals (Board) on appeal of a February 1992 rating decision by the Chicago, Illinois Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for PTSD finding there was no clear and unmistakable error in the November 1985 rating decision denying said disorder. REMAND The veteran's initial claim of service connection for PTSD was denied by the RO in November 1985. He was informed of his right to appeal this decision but chose not to exercise this right. The RO's decision thus became final. 38 U.S.C.A. § 7105 (West 1991). The veteran submitted additional evidence including VA outpatient treatment records showing an impression of PTSD with depression, a letter from him stating his stressors, a VA hospital summary report, and a report of VA examination in June 1986. In August 1986, the RO again denied service connection for PTSD. The veteran did not appeal this determination. The veteran underwent VA examinations in June 1988, June 1990 and March 1991. In May 1991, he submitted a letter from Joseph Yount, Ph.D., dated in February 1991, indicating treatment since February 1987 in the mental hygiene clinic at the West Side VA Medical Center. According to the statement, the veteran was enrolled in a specialized PTSD clinic and received weekly group therapy and occasional individual therapy. In October 1991, the veteran's representative submitted, on behalf of the veteran, a claim of clear and unmistakable error in the November 1985 rating decision and all subsequent rating decisions denying service connection for PTSD and showing it as a nonservice-connected disorder. In a rating decision of February 1992, the RO found that there was no clear and unmistakable error in the 1985 and subsequent rating decisions. In June 1992, the RO confirmed the denial of service connection for PTSD on the basis that recent evidence submitted by the veteran was not new and material for purposes of reopening his claim. In November 1992, a letter was received by the RO from Cheryl Gaines, M.A., M.D., dated in July 1992. Dr. Gaines reported that she had treated the veteran since April 1989 in the mental hygiene clinic at West Side VA Medical Center. She noted that the veteran continued to receive weekly group therapy and occasional individual therapy with Dr. Yount. She reported a diagnosis of PTSD. After considering the evidence, the RO continued the denial of service connection for PTSD in a rating decision dated in December 1992. From a review of the supplemental statement of the case issued following that decision, it appears that consideration was given to the entire record, de novo, as if the veteran's claim had been reopened on the basis of new and material evidence. Accordingly, the Board will treat the claim for service connection for PTSD as a claim reopened by the RO on the basis of new and material evidence. We note that the most recent VA examination was conducted in March 1991. Historically, the veteran has been given a number of diagnoses including PTSD, adjustment disorder with depressed mood, major affective disorder with psychotic features, generalized anxiety disorder, and schizophrenia, paranoid type. The United States Court of Veterans Appeals (Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining evidence from any source, and obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). In view of the foregoing, the Board finds that further development is in order to assist the veteran in the development of his claim. Therefore, the case is REMANDED to the RO for the following actions: 1. All up-to-date VA and any private clinical records for the claimant should be obtained and incorporated into the claims file. In connection therewith, the RO should contact the veteran and ask him to identify any additional sources of medical treatment for his psychiatric disorder. All records should be obtained in compliance with the appropriate procedure. Specifically, the RO should obtain complete records of the veteran's treatment in the mental hygiene clinic at West Side VA Medical Center. 2. The veteran should be contacted and requested to provide specific details surrounding the stressful experiences he allegedly had during his military service in Vietnam. Attention should be given to the veteran's June 26, 1986, statement concerning his stressors in which he named James Chapi as one of his friends who died during service, as well as to the incidents reported by him on examination in August 1985. The veteran should be asked to elaborate on these events and provide as much specific information as possible. The RO should then utilize the services of the United States Army and Joint Services Environmental Support Group (ESG), in an attempt to confirm the stressors identified by the veteran. 3. Thereafter, the veteran should be examined by a board of two VA psychiatrists who have not previously examined him to determine the exact nature of any psychiatric disorder currently present. Prior to this examination, the veteran should also be afforded full psychological testing. Each psychiatrist should conduct a thorough review of the claims folder, to include the report from the ESG and the report of psychological testing, prior to examination and consideration of the criteria for PTSD. The examination report should include a detailed account of all pathology found to be present. If there are different psychiatric disorders than PTSD, the board should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. If a diagnosis of PTSD is appropriate, the examiners should specify the credible "stressors" that caused the disorder and the evidence upon which they relied to establish the existence of the stressor(s). They should also describe which stressor(s), if any, the veteran reexperiences and how he reexperiences them. When the above development is completed, the case should be reviewed by the RO. If the decision remains adverse to the veteran, the RO should issue a supplemental statement of the case summarizing the evidence, law and regulations, and explaining how the law and regulations apply to the evidence. The RO should afford the veteran and his representative 60 days to respond to the supplemental statement of the case before the matter is returned to the Board for final adjudication, if otherwise in order. 38 C.F.R. § 20.302(c) (1994). The purpose of this REMAND is to procure clarifying data. No action is required of the veteran until further notice. D. C. SPICKLER Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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).