Citation Nr: 0003089 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 94-39 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than September 16, 1998, for the award of special monthly pension at the housebound rate. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from August 1962 to August 1965. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions issued by the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). In July 1996, the Board issued a decision which found that the appellant had submitted new and material evidence in connection with his claim for service connection for a nervous disorder to include PTSD, and the appeal was granted to that extent. The Board remanded the case for de novo adjudication of this claim. In June 1997, the RO issued a rating decision which clarified that the PTSD claim was a separate claim apart from a previously denied claim seeking service connection for schizophrenia, undifferentiated type, and a de novo review of the PTSD claim was undertaken in compliance with the Board's remand instructions. As only the issue of service connection for PTSD was claimed and developed for appeal by the appellant from the onset, the RO's action on remand was proper in this regard. The appellant has not appealed the RO's denial by the July 1997 rating decision of the schizophrenia-new and material evidence claim and therefore, this claim is not presently before the Board. As noted on the title page, the issues presently before the Board include a claim alleging entitlement to an earlier effective date for the award of special monthly pension at the housebound rate. This issue was developed for appeal while the appeal on the PTSD claim was pending at the RO following the Board's July 1996 remand. This claim is the subject of the Board's remand instructions below as well. REMAND Unfortunately, this case must again be remanded to the RO based on a change in the law concerning claims for service connection based on the submission of "new and material" evidence issued since the Board's July 1996 decision/remand. In the case of Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), the U. S. Court of Appeals for Veterans Claims (the Court) impermissibly ignored the definition of "material evidence" adopted by VA under 38 C.F.R. § 3.156(a) as a reasonable interpretation of an otherwise ambiguous statutory term (found under 38 U.S.C. § 5108) and, without sufficient justification or explanation, rewrote the statute to incorporate the definition of materiality from an altogether different government benefits scheme. Pursuant to the holding in Hodge, the legal hurdle adopted in Colvin that required reopening of claim on the basis of "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" of the case was declared invalid. More recently, the Court articulated a new test for adjudicating claims based on new and material evidence. In Elkins v. West, 12 Vet. App. 209 (1999) (en banc), the Court held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge, supra: VA must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening VA must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, VA may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. See also Winters v. West, 12 Vet. App. 203 (1999) (en banc). Although prior to Hodge a conclusion that new and material evidence had been presented necessarily meant that the reopened claim was well grounded, the Court stated in Elkins that the Federal Circuit in Hodge effectively "decoupled" the relationship between determinations of well-groundedness and of new and material evidence by overruling the reasonable-possibility-of-a-change-in-outcome prong of Colvin, supra. There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). As this issue remains in appellate status, and requires further development, for the reasons set forth below, the RO should ensure upon readjudication that it consider whether, based upon all the evidence and presuming its credibility, the PTSD claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and if the claim is well grounded, evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. Winters, 12 Vet. App. 203 (1999) (en banc). Additional development of the claim for service connection for PTSD under 38 U.S.C.A. § 5103(a) (duty to ensure that application for benefits is as complete as possible) is required in this case based on a recent amendment to 38 C.F.R. § 3.304(f) issued during the pendency of this appeal. 64 Fed. Reg. 32807 (June 18, 1999). The new version of the regulation is effective from March 7, 1997, and hence, as this claim was still pending on that date, the revised version must be considered. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). One of the changes to section 3.304(f) stipulates that an award of service connection for PTSD depends on whether there is medical evidence diagnosis the condition in accordance with 38 C.F.R. § 4.125(a), which the Board observes is a reference to a diagnosis made on the criteria set forth in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM IV), fourth edition. The DSM-IV was first published in May 1994. The evidence in this case reflects that the appellant was last formally examined for purposes of determining whether he had PTSD in April 1992, for which an addendum report to that examination was issued in July 1992. Hence, in light of the regulation change, the RO should have the appellant examined again in order to determine whether he has a DSM-IV diagnosis of PTSD. Finally, the Board notes that precedent holdings of the Court issued during the pendency of this appeal provide new guidance for the adjudication of claims for service connection for PTSD. See e.g. Patton v. West, 12 Vet. App. 272 (1999) (verification of non-combat stressors); Suozzi v. Brown, 10 Vet. App. 307 (1997) (sufficiency of information to verify stressors); Cohen v. Brown, 10 Vet. App. 128 (1997) and Moreau v. Brown, 9 Vet. App. 389 (1996). Although many of the details of the appellant's alleged stressor experiences are not verified, it should be noted that in Suozzi, the Court expressly held that a veteran need not prove "every detail" of an alleged stressor. Id. at 311. Regarding the earlier effective date claim for the award of special monthly pension based on housebound status, the Board notes that the appellant requested a hearing before the Board in connection with this claim. See Substantive Appeal, VA Form 9, dated August 31, 1999. However, his request should be specifically clarified as he has a number of options regarding the kind of hearing he may want. By statute, the appellant is entitled to a hearing before a Member of the Board who will issue the final decision of the Secretary. 38 U.S.C.A. §§ 7104(a), 7105(a) (West 1991). Accordingly, the RO should schedule a hearing before the Board on this issue upon clarification from the appellant as to the type of hearing desired. See 38 C.F.R. § 20.704(a) (1999). In addition, the Board observes that the August 1999 statement of the case issued in connection with the earlier effective date claim misidentified the issue, setting forth reasons and bases as to why his claim for special monthly pension based on aid and attendance was denied, rather than addressing the issue specifically appealed in the notice of disagreement filed in March 1999. Therefore, as this misidentification of the issue appealed constitutes a material defect in the August 1999 statement of the case, the RO should issue a supplemental statement of the case to correct this defect. See 38 C.F.R. § 19.31 (1999) (supplemental statement must be issued if there is a material defect in the statement of the case or prior supplemental statement of the case). Accordingly, this case is REMANDED to the RO for the following development: 1. The RO should schedule the appellant for a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. This examination, if feasible, should be conducted by a psychiatrist who has not previously examined, evaluated or treated the appellant. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record and found sufficient to produce PTSD by the examiner. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to the diagnosis of PTSD entered on the report of VA psychiatric examination reports dated in April and July 1992. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 2. Subsequently, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 3. Upon completion of the above, the RO should readjudicate the claim of entitlement to service connection for PTSD. The RO's readjudication of this claim should be in accord with the judicial precedent in Elkins, Winters, supra, regarding whether the claim is well grounded, and if so, whether a merits review of the claim warrants entitlement to the benefits sought. Further, the readjudication of this claim must be in accord with the revised version of 38 C.F.R. § 3.304(f), as amended effective from March 1997. If the claim is found to be well grounded, the RO should also carefully consider the benefit of the doubt rule within the analytical framework provided by the Court in Patton, Suozzi, Cohen and Moreau, cited above. In this regard, if the evidence is not in equipoise the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and provided the opportunity to respond thereto. 4. The RO must issue a supplemental statement of the case to the appellant and his representative addressing the issue of entitlement to an effective date earlier than September 16, 1998, for the award of special monthly pension at the housebound rate. If the decision remains adverse to the appellant and, after the appellant has been given the opportunity to respond thereto, the claims file should be returned to the Board for further appellate review of this claim, if in order. 5. The RO should ask the appellant to clarify what kind of Board hearing the appellant desires in connection with his claim for an earlier effective date for the award of special monthly pension based on housebound status. If he elects to appear before a Member of the Board at the RO, the hearing should be scheduled in accordance with the date the request for such hearing was received by the RO. Should he desire a hearing before the Board in Washington, DC, the RO should forward the case to the Board for appropriate scheduling action following completion of all development matters set forth above in the preceding action paragraphs. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Appeals for Veterans Claims 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. 1999) (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. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).