BVA9505626 DOCKET NO. 90-26 676 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from January 1968 until January 1970; from January 1971 to October 1972; and from January 1978 until April 1980. He served in Vietnam from January 1969 until January 1970. An administrative decision of the Department of Veterans Affairs (VA) in February 1973 held that the character of the veteran's discharge from his second period of service was a bar to VA benefits, but in a subsequent VA administrative decision of May 1978, it was noted that his discharge from the second period of service had been upgraded and was no longer a bar to benefits based on his second period of active service. The veteran was in receipt of a permanent and total disability rating for pension purposes from December 4, 1972, until May 1, 1975. This appeal comes before the Board of Veterans' Appeals (the Board) from an April 1989 rating determination of the Columbia, South Carolina, Regional Office (RO). The case was remanded in April 1991 and thereafter, in a decision of the Board of April 6, 1993, entitlement to a permanent and total disability rating for pension purposes was denied. The veteran appealed that decision to the United States Court of Veterans Appeals (the Court) which, by an order of September 14, 1994, remanded the case to the Board pursuant to a joint motion for remand which requested that the case be remanded for further procedural and evidentiary development. REMAND Service connection for a psychiatric disorder was denied by the Board in a decision in 1975 and again in July 1981. A decision of the Board in December 1983 denied service connection for post-traumatic stress disorder (PTSD). As noted in the joint remand, service connection was again denied for PTSD by the RO in April 1992, but it does not appear that the veteran was informed of the requirements of submitting new and material evidence to reopen the claim for service connection. In this regard, at hearings in June 1975 (at page 3) and July 1975 (at page 1), the veteran contended that he had a nervous condition as a result of delays by the VA in processing his claims. Also on file is a report of a July 1985 orthopedic evaluation by William Bowen, M.D., referable to a June 1984 injury to the veteran's left hand, with respect to which it appears the veteran may have claimed workman's compensation benefits, and that notes that on examination, the veteran was anxious and tense, obviously secondary to his injury. Additionally, on file is a copy of a February 1990 decision of the Agent Orange Payment Program reflecting that the veteran had become totally disabled in August 1981 from wounds incurred in 1970 and that his current disability was "Delayed Stress Syndrome, Post-Traumatic Stress Syndrome." His exposure to defoliant spraying was conceded. At a March 1983 hearing, the veteran testified that he had served for ninety (90) days to four months in the field in Vietnam, when he had been assigned to the 173rd Airborne Division, Company D and had been involved in several firefights and had lost several good friends, and had also gotten two Purple Hearts, one for a punji stick wound to the right great toe and the other for his shell fragment wounds of the right anterior thigh (pages 2, 3 and 4 of the transcript). At a January 1981 hearing, he testified that he had been taken out of the field while in Vietnam because of his nervous condition (page 1 of the transcript). He also related having been treated by a local psychiatrist at some later time, apparently in 1978 (page 2 of the transcript). At the 1983 hearing, it was requested that if the veteran's personnel records did not reflect combat wounds in Vietnam (which they do not), that the personnel records of his outfit in Vietnam be obtained (page 8 of the transcript). In the joint motion for remand, it was also requested that the veteran be requested to provide a detailed statement stating the dates, places, and circumstances of all stressful incidents that occurred in combat which allegedly gave rise to his claimed PTSD and that thereafter, the United States Environmental Support Group be contacted to verify such stressors. It was also requested that the veteran be evaluated to determine whether he now has psychogenic pain syndrome and the nature and etiology of any such psychiatric disorder that he may now have. Based on the joint motion for remand and a review of the evidentiary record as a whole, it appears that there may be private clinical records not previously associated with the claims folder with respect to a back injury which occurred in approximately 1980 while the veteran was employed with the South Carolina Department of Corrections and for which he was treated at the Baptist Hospital apparently in Columbia, South Carolina, as well as for a June 1984 injury of the left hand for which he was afforded an orthopedic evaluation in July 1985 and which he has testified stemmed from a box falling on his left hand while at work. However, it is not clear whether the veteran actually filed for or received workman's compensation benefits with respect to these incidents, nor is it clear that all of the private clinical records referable to his claim for and receipt of workman's compensation benefits stemming from an August 1988 on-the-job low back injury for which he received workman's compensation benefits from the State of South Carolina have been associated with the claims folder. Likewise, all of the clinical records used in the award of Social Security disability benefits as reflected in the "list of exhibits" have not been obtained. In this connection, at a January 1990 hearing, the veteran testified that his Social Security disability benefits had been terminated because he had received workman's compensation benefits which, in turn, had now terminated in December 1989 and that he now once again hoped to obtain Social Security disability benefits (pages 7 and 23 of the transcript). Additionally, it appears that the veteran now claims disability or disabilities stemming from exposure to Agent Orange during military service. In a March 1990 statement, he specifically stated that Agent Orange had resulted in degenerative joint disease. It is not clear whether he now claims entitlement to service connection for other disabilities as a result of exposure to Agent Orange, in addition to degenerative joint disease. This matter should be clarified. In the veteran's attempts to demonstrate entitlement to pension benefits, he has made reference to numerous physical disabilities, but it is not clear whether he now attempts to actually claim service connection for such disabilities. This matter should also be clarified. Similarly, pursuant to the joint motion for remand, the veteran should clarify whether he now seeks compensable evaluations for his now noncompensably rated residuals of a shell fragment wound of the right anterior thigh and residuals of an injury of the right great toe. In view of the foregoing, the case must be REMANDED for the following actions: 1. The RO should contact the veteran and request that he specify in writing whether he ever filed for workman's compensation benefits stemming from any low back injury while employed by the South Carolina Department of Veterans Affairs in 1980 or for any on-the-job left hand injury in June 1984. He should be requested to list the dates of any and all treatment and the places and identifying sources of such treatment with respect to such injuries or residuals thereof, and all such clarifying and identifying information with respect to workman's compensation claims. 2. Thereafter, the RO should obtain from the veteran the necessary authorization forms for obtaining all the information requested above, as well as review all records referable to any and all workman's compensation claims that the veteran has made, including any such claims for work-related low back injuries in 1980 and 1988 and a left hand injury in June 1984. All records from the appropriate Workman's Compensation Bureau or Commission should be obtained, and a specific effort should be made by the RO to obtain all clinical records used by any and all such State commissions or bureaus in making any determinations as to claims for workman's compensation benefits. 3. Similarly, the RO should obtain all clinical records referred to in the "list of exhibits" which were used in the December 1989 determination of the veteran's entitlement to Social Security disability benefits. Further, the veteran should be requested to specify whether he has again filed a claim for Social Security disability benefits and to identify all treating sources and clinical records with respect to any such claim. The RO should then attempt to obtain all such records. 4. The veteran should be requested to provide in writing a detailed statement of all combat activities, firefights, conditions or stressful incidents during his combat service in Vietnam which he now claims gave rise to a psychiatric disability, to include PTSD. He should be requested to provide as much detailed information as possible as to the exact times and geographical places of any and all such incidents, as well as all identifying information as to any service comrades who were wounded or killed in action, as well as all other information pertaining to his military service which he believes supports his claim for service connection for a psychiatric disorder, to include PTSD. 5. Thereafter, the RO should attempt to once again obtain legible copies of the veterans service personnel records and if these are negative with respect to awards for valor or combat injuries, such as Purple Hearts, the personnel records of his service unit should be requested. 6. Then, the RO should provide copies of the veteran's statement with respect to stressful incidents in the veteran's service personnel records or personnel records of his unit, or both, to the United States Army and Joint Services Environmental Support Group at 7798 Cissna Road, Springfield, Virginia 22150. The RO should request information as to whether the veteran was, in fact, exposed to the traumatic events that he described during his service in the Republic of Vietnam. 7. The veteran should be contacted and requested to provide the necessary authorization forms for obtaining all clinical records of treatment, evaluation, observation or hospitalization of the veteran from: A. Dr. Cindy Derringer; B. Dr. Carl Mitchell; C. Dr. Worrel; D. Dr. Huan; E. Dr. Alexander. F. All other physicians or treating sources with respect to all claims subsequently developed for appellate consideration. 8. The veteran should be contacted and requested to clarify whether he is now claiming entitlement to compensable evaluations for his service-connected disabilities and, additionally, to specify clearly and concisely all disabilities for which he now claims service connection, to include the nature of the disability and the basis upon which service connection is claimed, such as incurrence during service (to include exposure to Agent Orange), aggravation during service, presumptively incurred during service, or secondary to service-connected disabilities. 9. The veteran should be afforded a comprehensive VA general medical examination to determine the extent and severity of all disabilities which he now has with respect to his claim for entitlement to a permanent and total disability rating for pension purposes. All of the veteran's subjective complaints and all objective findings should be legibly recorded. The extent and severity of his service-connected as well as nonservice-connected disabilities should be determined, to include the impact of the disabilities, both service connected and nonservice connected, upon his employability. To the extent possible, the examiner(s) should express an opinion as to the impact of each disability upon the function of the affected bodily system. All indicated tests and studies should be conducted. The claims folder must be made available for review prior to the examination in order to facilitate study of this case. 10. The veteran should be afforded a comprehensive VA psychiatric examination to determine the existence of any and all psychiatric disabilities that the veteran now has, to include a determination of whether he has psychogenic pain syndrome or PTSD and, if so, the cause and etiology of any such disorder. Additionally, a determination should be made as to whether the veteran has any psychiatric disability as a result of any physical disabilities that he now has, to include his service-connected residuals of a shell fragment wound of the anterior aspect of the right thigh and residuals of an injury of the right great toe. If it is determined that he has either psychogenic pain syndrome or PTSD, an opinion should be rendered as to whether either such disorder is related to the veteran's military service or whether his psychogenic pain syndrome is in any way related to his service-connected disabilities, as opposed to nonservice-connected disorders. Specifically, if it is determined or opined that he has PTSD, the stressors which form the basis or predicate for that diagnosis should be specified. All of the veteran's subjective complaints and all objective findings should be recorded. All indicated tests and studies, to include psychological testing, should be conducted if necessary. The claims folder must be made available for review prior to the examination in order to facilitate study of the case. 11. The veteran should be afforded a comprehensive VA orthopedic examination to determine the extent and severity of his service-connected residuals of a shell fragment wound of the anterior aspect of the right thigh and residuals of an injury of the right great toe, as well as to determine the extent and severity of any disability of the left hand that he now has or of any other joint or muscle. Moreover, a determination should be made as to whether he now has degenerative joint disease and, if so, the nature and etiology thereof, to include a determination as to whether it bears any relationship to the claimed exposure to Agent Orange or any other herbicide during service in Vietnam. All of the veteran's subjective complaints and all objective findings should be legibly recorded. All indicated tests and studies should be conducted. The claims folder must be made available for review prior to the examination in order to facilitate study of the case. 12. The veteran should be afforded a comprehensive VA neurology examination to determine the extent and severity of all complaints of numbness of the left leg purportedly stemming from disability of the low back, as well as any and all neurological residuals of any injury of the left hand that he received after military service. All of the veteran's subjective complaints and all objective findings should be legibly recorded. All indicated tests and studies should be conducted. The claims folder must be made available for review prior to the examination in order to facilitate study of the case. 13. Thereafter, the RO should readjudicate the issue of entitlement to a permanent and total disability rating for pension purposes on a de novo basis. If the veteran is claiming entitlement to service connection for PTSD or other psychiatric disability, back disability, respiratory disability manifested by chest pain or any rectal disability, he should be informed of the requirement of submitting new and material evidence to reopen those claims. If he claims service connection for degenerative joint disease as secondary to exposure to Agent Orange or psychogenic pain syndrome as either incurred in service or secondary to service-connected disabilities, he should be informed of the appropriate laws and regulations with respect to those claims. The RO should then readjudicate those issues on the appropriate basis, either de novo or whether new and material evidence has been submitted to reopen the claims, as appropriate. The veteran must be informed that as to any application to reopen a previously denied claim or as to any new claim which is denied, he must file a notice of disagreement (NOD) in order to initiate an appeal. Then, the veteran and his representative should be issued a supplemental statement of the case (SSOC) as to any issue to which a NOD is received, as well as to the issue of entitlement to a permanent and total disability rating for pension purposes. The veteran and his representative must be informed that as to any issue other than entitlement to a permanent and total disability rating for pension purposes, the veteran must file a substantive appeal (VA Form 9) in order to perfect the appeal as to such issue(s). 14. The veteran and his representative must be informed that despite the joint motion for remand and the order of the Court requesting additional procedure and evidentiary development, the jurisdiction of the Board is solely appellate in nature and that if the veteran does not initiate an appeal by filing an NOD or perfect the appeal by filing a substantive appeal, such issues to which these procedural prerequisites are not met will not be adjudicated by the Board on appeal. 15. The veteran should be afforded a comprehensive VA social and industrial survey to determine his past educational attainment, to include his level of education beyond obtaining a graduate equivalency diploma, to include training at a technical or vocational school or any college or other institution of higher learning and to determine his entire past work history, to include all types, places and periods of past employment and length of each such employment and reasons for termination thereof. All pertinent leads should be followed up Thereafter, if otherwise in order, the case should be returned to the Board for further appellate consideration. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN 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) (1993).