BVA9500704 DOCKET NO. 93-05 996 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD). 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The appellant apparently served on active duty from July 1968 to June 1971. He has been represented throughout his appeal by the Veterans of Foreign Wars of the United States. The appellant's claim for service connection for post-traumatic stress disorder (PTSD) was previously denied by the Department of Veterans Affairs (VA) in November 1989. He did not appeal that determination within one year of the notification thereof, and the decision became final. This current matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision of the Sioux Falls, South Dakota Regional Office (RO). By rating action of February 1991, the RO denied the appellant's request to reopen the claim for service connection for PTSD, as well as a claim for service connection for a back disability. Additional information was received from the service department in July 1992; thereafter, by a rating action of November 1992, the RO determined that new and material evidence had not been received to reopen the appellant's claim for service connection for PTSD. A private medical statement was received in January 1993, to which was attached a letter from the appellant's representative indicating that the appellant had waived consideration of the evidence by the RO. The appeal was received at the Board in March 1993. REMAND The Board's review of the record has revealed a threshold eligibility question pertaining to the appellant's service which must be resolved prior to appellate review of the appeal on its merits. We note that the appellant's DD Form 214 is not of record and that the various VA Forms 70-3101 and 21-3101 which were returned to the RO by the National Personnel Records Center do not actually show verification of the appellant's service dates and the character of his separation. This lack of clear certification is of particular concern to the Board in light of the appellant's service administrative records which raise questions unanswered by the current record regarding the character of his discharge from service. In this regard, we note that his service qualification records indicate that his service was terminated by an undesirable discharge. However, those records also contain a notation which refers to some action apparently taken by "ADRB" in June 1980, and the Board assumes that this notation is a reference to the Army Discharge Review Board. If our assumption is correct, the reference suggests the possibility that the initial characterization of the appellant's discharge could later have been revised. Nevertheless, on the record before us this is mere speculation. Since there is no unequivocal certification of the appellant's service, threshold eligibility factors pertinent to the benefits sought in this appeal are unresolved on the basis of the current record. Therefore, the case is remanded to the RO for the following action: 1. The RO should obtain a copy of the appellant's DD Form 214 or amended DD Form 214 or DD Form 215, or other unequivocal certification of the appellant's service which clearly shows the character of his discharge from service. This documentation should be placed in the record. 2. In the event that further action is required at the RO as a result of the service information received, the RO should take such action in accordance with appropriate procedure. The case should then be returned to the Board for review. The purpose of this remand is to clarify basic eligibility factors prior to further adjudication. The Board expresses no opinion as to the ultimate disposition of this appeal. 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) (1993). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in effect, that he developed PTSD as a result of his military service in Vietnam. The veteran maintains that during his two tours in Vietnam he served as a crew chief on a helicopter, and he was subject to sniper and rocket attacks. The service representative points out that the record contains several diagnosis of PTSD. The Board's attention is directed to a medical statement from Dr. Robert Coberly dated in December 1992, who reported that the veteran meets the criteria for a diagnosis of PTSD. Therefore, it is argued that service connection for PTSD is warranted. The veteran also maintains that he is entitled to service connection for back disability which had its onset in service. The veteran indicates that he injured his back during a parachute jump while serving as a pathfinder in Vietnam, in 1968 or 1969. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been presented such as to reopen a claim for entitlement to service connection for PTSD. However, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for a back disability. FINDINGS OF FACT 1. The veteran was denied service connection for PTSD by the RO in November 1989; he did not appeal that decision. 2. The evidence submitted to reopen the claim for entitlement to service connection for PTSD consists of documents not previously of record, which are also both relevant and probative of this issue. 3. There no clinical data of record concerning findings referable to a claimed 1968 or 1969 back injury; there is no objective evidence of a back disability in service. 4. The veteran's currently diagnosed back disability, spondylolysis at L4-L5, is not shown to be related to military service. CONCLUSIONS OF LAW 1. The evidence received since the November 1989 denial of service connection for PTSD is new and material. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 2. The decision of the RO in November 1989 denying service connection for PTSD is reopened by new and material evidence. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (1993). 3. The claimed back disability was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(b) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that we have found that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, we find that he has presented claims which are plausible. Moreover, after careful review of the evidentiary record, we are also satisfied that all relevant facts have been properly developed to the extent possible. Information has been received from the National Personnel Records Center to the effect that all available service medical records have been provided to the RO. I. Whether New and Material Evidence Has Been Submitted to Reopen the Claim for Entitlement to Service Connection for PTSD. The Board observes that when this case was originally considered by the RO in November 1989, the record was fairly clear. It showed that the veteran served on active duty during the Vietnam War. It also showed that he served as a crew chief. A psychiatric evaluation conducted in April 1971 reported findings of inadequate personality and alcoholism; an administrative separation for unsuitability was recommended. The medical evidence of record subsequent to service demonstrates that the veteran was admitted to a VA hospital in April 1988 for evaluation for placement in an Alcohol Dependence Treatment Program (ADTP). The veteran did not receive any treatment or evaluation for a psychiatric disorder. The discharge diagnoses were alcohol abuse and PTSD. The veteran was again admitted to a VA hospital in June 1989 for complaints of depression and alcohol abuse since his military service in Vietnam. The veteran reported that since service, he found himself using alcohol to excess, getting depressed and angry at people. During hospitalization, he was prescribed antidepressants which helped his depression. The discharge diagnoses were dysthymic disorder, alcohol dependence and PTSD. Based upon the above information, in its rating action of November 1989, the RO determined that service medical records failed to disclose any evidence of a stressor in service, and the veteran had failed to respond to a questionnaire requesting additional information concerning his PTSD. It was also determined that while the VA hospital reported a diagnosis of PTSD, there was no reference to Vietnam service or any other objective evidence. With respect to the evidence submitted by the veteran in connection with his attempt to reopen his claim, the Board observes that this evidence includes a statement of stressors completed by the veteran in June 1990; additional service records from the National Personnel Records Center; reports from the Environmental Support Group of the Department of the Army; report of VA examinations conducted in November 1990; VA medical records from May 1990 to October 1991; and a statement from Robert Coberly, M.D. dated in December 1992. Significantly, following the VA psychiatric evaluation in November 1990, the Chief of psychology reported that the veteran's psychological testing, related combat history, problems in readjustment following discharge, social problems in establishing close relationship with others, and physiological responses during interview and testing were congruent with those observed in combat veterans suffering from PTSD. Moreover, in the statement from Robert Coberly, he indicated that psychological evaluation on September 24, 1992 revealed that the veteran meets the criteria for PTSD, secondary to prior to combat experiences. In light of the above evidence, the Board has determined that the claim is reopened. Such additional evidence is obviously new and both relevant and probative of the issue at hand. It is not merely cumulative of other evidence of record. Furthermore, there is a reasonable possibility that the additional evidence, when viewed in the context of all the evidence, will change the outcome. See Colvin v. Derwinski, 1 Vet.App. 171 (1991) and Smith v. Derwinski, 1 Vet.App. 178 (1991). Under these circumstances, de novo consideration of his claim by the RO based on review of all of the evidence, both old and new, is required. II. Entitlement to Service Connection for a back disability. With respect to the veteran's claim for service connection for a back disability, the Board observes that the service medical records in the claims file, including the separation examination of April 1971, are negative for any complaints, findings or diagnosis of a back disability. Clinical evaluation of the spine was reported to be normal. No relevant history relating to a back injury was recorded. Subsequent to service, VA hospital summaries for the period from April 1988 to July 1989 essentially reflect treatment for alcohol abuse and depression. During physical evaluation on admission to the hospital in April 1988, examination of the back revealed a normal curvature with a full range of motion. No pertinent diagnosis of a back disability was reported. No evaluation or treatment of the veteran's back was reported during hospitalization in 1989. The veteran was afforded a VA compensation examination in November 1990, at which time he complained of back problems; he indicated that he was not aware of such until approximately 2 to 3 months ago. The veteran reported doing parachute jumps in 1968 and 1969, during which time he believed that he injured his back. He noted that after bending too long, he cannot straighten the back. The veteran further noted that the pain in the back radiates to the groin areas. The examiner reported that the veteran had been seen by orthopedic surgeon and neurologist in the past; he further indicated that the veteran had a CT scan of the lumbosacral spine in May 1990 which showed moderate concentric bulging of the disks without evidence of herniation at L4, L5 level and bilateral spondylolysis without evidence of spondylolisthesis at L5-S1 level. Received in May 1992 were additional VA medical records for the period from May 1990 to October 1991 which reflect that the veteran continued to receive treatment for a back disability. The Board notes that the available service medical records are negative for any complaints, findings, or diagnoses of a back disability. The separation examination of April 1971 reported the spine to be normal. No history or findings indicative of a back injury were recorded. The earliest evidence of record showing treatment for a back disability was in 1990, many years following the veteran's discharge from military service. While we have considered the veteran's contentions regarding the onset of his back disability, we find that it is outweighed by the objective clinical evidence which the initial manifestation of a back disability a number of years following service. Accordingly, the preponderance of the evidence is against the claim for service connection for the currently diagnosed back disability. Thus, the benefit sought on appeal must be denied. ORDER The appeal is granted to the extent that the claim of entitlement to service connection for stasis ulcers secondary to a service- connected skin disease is reopened, new and material evidence having been submitted. Entitlement to service connection for a back disability is denied. REMAND In view of the above action, the claim is REMANDED to the RO for further adjudication consistent with the Board's finding that the claim is reopened. Furthermore, consistent with the VA's duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) and the Court's decision in Bernard v. Brown, 4 Vet.App. 384 (1993), and the fact that the current clinical evidence is not sufficient to evaluate the skin disorder, the case is REMANDED to the RO for the following development: The RO should reevaluate the veteran's claim seeking entitlement to service connection for PTSD on a de novo basis, with review of all of the evidence, both old and new. If the action taken by the RO remains adverse to the veteran in any way, both he and his representative should be provided with an appropriate supplemental statement of the case and afforded the time to respond, after which the case should be returned to the Board for further appellate review. No action is required of the veteran until he is notified. This REMAND is to ensure that the veteran is afforded due process of law and to procure clarifying data. 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.