BVA9505732 DOCKET NO. 93-08 347 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disability. 2. Entitlement to an increased rating for nephrolithiasis and ureterolithiasis, psychological factor affecting physical condition, currently evaluated as 30 percent disabling. 3. Entitlement to an increased rating for left lumbar paravertebral myositis, currently evaluated as 20 percent disabling. 4. Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, his spouse, Dr. Jose A. Juarbe, Lizette Flores and Edelmira Guadalupe ATTORNEY FOR THE BOARD James R. Siegel, Counsel REMAND The veteran served on active duty from October 1965 to September 1969. By decision of June 1991, the Board of Veterans' Appeals (the Board) denied the veteran's claim for service connection for a psychiatric disorder. Recently, he has submitted additional evidence seeking to reopen his claim of entitlement to service connection for a psychiatric disability. This matter comes before the Board on appeal from decisions from the Regional Office (RO). By rating action dated in February 1992, the RO determined, in effect, that the evidence submitted by the veteran was not new and material, and his claim for service connection for a psychiatric disability was not reopened. In addition, the RO denied his claim for an increased evaluation for his kidney disability. In a rating decision dated in October 1992, the RO denied his claim for an increased evaluation for his service- connected back disorder and his claim for a total rating based on individual unemployability due to service-connected disability. The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107 (West 1991). The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the veteran's evidentiary assertions concerning the onset and cause of his psychiatric disorder and the severity of his service-connected disabilities that are within the competence of a lay party to report, as well as the additional medical opinions added to the record purporting to link a current psychiatric disorder to a service-connected disability, are sufficient to conclude that his claims are well grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992); Espiritu v. Derwinski, 2 Vet.App. 492 (1992), King v. Brown, 5 Vet.App. 19 (1993). Service connection is in effect for nephrolithiasis and ureterolithiasis, psychological factor affecting physical condition, currently evaluated as 30 percent disabling, left lumbar paravertebral myositis, currently evaluated as 20 percent disabling, and for status post surgical resection of the 12th rib with partial resection, currently evaluated as 10 percent disabling. When the Board denied service connection for a psychiatric disorder in its June 1991 decision, it was based on the fact that the psychiatric evaluation performed by the Department of Veterans Affairs (VA) in April 1990 disclosed that the veteran had a personality disorder, a disability for which service connection may not be granted. See 38 C.F.R. § 3.303(c) (1994). In a statements dated in January 1992 and February 1993, J. A. Juarbe, M.D., reported that he had examined the veteran and concluded that the veteran had major depression, recurrent, with psychotic features and paranoid personality. The physician commented that it was his opinion that the veteran's mental condition was due to and directly related to his physical service-connected conditions. This report does not reflect that the physician had an opportunity to review the complete record in this case, nor was it shown that the diagnosis was supported by psychological testing. The record further reflects that the appellant's accounts of his history and symptoms contain significant inconsistencies. See Swann v. Brown, 5 Vet.App. 229 (1993). Review of the record also shows that diagnosis of post-traumatic stress disorder (PTSD) has been offered in the past in this case. As the Board noted in 1991, no verified "stressor" sufficient to support the diagnosis of PTSD has been demonstrated. Since the date of the Board's last decision, the United States Court of the Veterans Appeals (Court) has entered several important decisions concerning the evidence necessary to support a grant of service connection for PTSD. In the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set forth the framework for establishing the presence of a recognizable stressor, which is an essential prerequisite to support the diagnosis of post-traumatic stress disorder. The Court analysis divides into two major components: The first component involves the evidence required to demonstrate the existence of an alleged stressful event; the second involves a determination as to whether the stressful event is of the quality required to support the diagnosis of post-traumatic stress disorder. With regard to the first component in the Court analysis, under 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304 (1994), and the applicable VA Manual 21-1 provisions, the evidence necessary to establish the occurrence of the recognizable stressor during service to support a claim of entitlement to service connection for post-traumatic stress disorder will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet.App. 60 (1993). The Court articulated the two-step process of determining whether a veteran "engaged in combat with the enemy." First, it must be determined through recognized military citations or other supported evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat. If the determination with respect to this type is affirmative, then (and only then) a second step requires that the veteran's lay testimony regarding claimed stressors must be accepted as conclusive after the actual occurrence and no further development or corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," e.g., credible, and "consistent with the circumstances, conditions, or hardships of such service." Zarycki at 98. In other words, the claimant's assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this fact. The record must first contain recognized military citations or other supportive evidence to establish that he "engaged in combat with the enemy." The Board further notes that the Court has indicated that the mere presence in a combat situation is not sufficient to show that an individual was engaged in combat with the enemy. Wood v. Derwinski, 1 Vet.App. 190 (1991) (affirmed on reconsideration, 1 Vet.App. 406 (1991)). In West, the Court elaborated on its analysis in Zarycki. In Zarycki, the Court held that in addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event was sufficient to give rise to post- traumatic stress disorder. Id. at 98-99. In West, the Court held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. The Court also held in West that a psychiatric examination for the purpose of establishing the existence of post-traumatic stress disorder was inadequate for rating purposes because the examiners relied, in part, on events whose existence the Board had rejected. Upon reviewing Zarycki and West, it appears that in approaching a claim for service connection for PTSD, the question of the existence of an event claimed as a recognizable stressor must be resolved by adjudicatory personnel. If the adjudicators conclude that the record establishes the existence of such a stressor or stressors, then and only then, the case should be referred for a medical examination to determine: (1) the sufficiency of the stressor; (2) whether the remaining elements required to support the diagnosis of PTSD have been met; and (3) whether there is a link between a currently diagnosed PTSD and a recognized stressor or stressors in service. 38 C.F.R. § 3.304(f) (1993) In such a referral, the adjudicators should specify to the examiner(s) precisely what stressor or stressors have been accepted as established by the record, and the medical examiners must be instructed that only those events may be considered in determining whether the appellant was exposed to a stressor and what the nature of the stressor or stressors was to which the appellant was exposed. In other words, if the adjudicators determine that the existence of an alleged stressor or stressors in service is not established by the record, a medical examination to determine whether PTSD due to service is present would be pointless. Likewise, if the examiners render a diagnosis of PTSD that is not clearly based upon stressors in service whose existence the adjudicators have accepted, the examination would be inadequate for rating purposes. Additional private medical records submitted on behalf of the veteran reflect recent treatment for tenderness of the left flank area and for his kidney disability. Edwin Maeso, M.D., a private physician, noted in a statement dated in February 1993, that he had treated the veteran for more than nine years and that he had operated on his left kidney due to renal lithiasis, and that he had also performed a partial nephrectomy and nephrolithotomy. He added that the veteran still had kidney problems and that he was still treating him. He concluded that the veteran was totally incapacitated and could not engage in any gainful employment. The Court has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. Olson v. Principi, 3 Vet.App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet.App. at 632. The veteran has submitted evidence reflecting recent treatment for his service-connected disabilities. It is noted that the veteran has not been afforded an examination to evaluate the severity of his service-connected kidney disability for many years. Under 38 C.F.R. § 3.326(a) (1994), a VA examination will be authorized where there is a reasonable probability of a valid claim. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These include 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40. The requirements set forth in these regulations for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet.App. at 593-94. Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO should provide an English translation of all documents in the claims folder which are in Spanish. 2. The RO should contact the veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers from whom he has received treatment for his kidney and lumbar spine disorders, and for status post surgical resection of the left 12th rib with partial resection since 1993. He should execute the proper authorization forms for release of this information. 3. The RO should request from the veteran a comprehensive statement containing as much detail as possible regarding the stressor(s) to which he alleges he was exposed in service. The veteran should be asked to provide specific details of the claimed stressful elements during service, such as dates, places, detailed descriptions of events, and any other identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment, or any other identifying detail. The veteran is advised that this information is vitally necessary to obtain supportive evidence on the stressful events and he must be asked to be as specific as possible because without such details an adequate search for verifying information cannot be conducted. He is further advised that failure to respond can result in adverse action. 4. When this information has been obtained, it and a copy of the appellant's DD 214 should be forwarded to the United States Army and Joint Services Environmental Support Group, 7798 Cissna Road, Springfield, Virginia 22160, for verification of the incident or incidents which the veteran reports he reexperiences. Any information obtained is to be associated with the claims folder. 5. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to a stressor or stressors in service, and, if so, what was the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the cases of Zarycki and West and the discussion above. In any event, the RO must specifically render a finding as to whether the appellant "engaged in combat with the enemy." If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor or stressors in service it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 6. The veteran should then be afforded VA examinations by specialists in nephrology, general surgery and orthopedics, if available, to determine the nature and extent of his service- connected genitourinary and orthopedic disabilities. All necessary tests should be performed. Following the examination and a review of the complete record, the examiners should be requested to comment on the degree to which the service connected disorders interfere with employability. 7. The RO should also arrange to afford the veteran a psychiatric examination: (a) In preparation for this examination, the RO must first determine whether events alleged as a stressor or stressors have been verified as noted above in paragraph 5. If so, the RO must specify for the examiners the stressor or stressors that it has determined are established by the record and the examiner must be instructed that only those events may be considered for the purpose of determining whether the appellant was exposed to a stressor in service. If the RO determines that no stressor has been verified, then the examiner must be instructed that no event alleged as a stressor has been verified, and thus this essential predicate to a diagnosis of PTSD has not been met. (b) The examination report should reflect a comprehensive review of all pertinent material in the claims folder. If the diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established for the record by the RO was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in service stressors found to be established for the record by the RO and found to be sufficient to produce PTSD by the examiners. (c) The report of examination should include the complete rationale for all opinions expressed. All necessary special studies or tests should be accomplished, particularly psychological testing, if this would assist in resolving any diagnostic conflicts. The claims folder and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. (d) Following the examination and a review of the complete record, the psychiatrist should state the current psychiatric diagnosis or diagnoses and he or she should be requested to furnish an opinion as to the degree of medical probability, expressed in percent terms, if possible, that the psychiatric disability was caused by the veteran's service-connected disabilities. 8. The RO should then review the record and ensure that all the above actions are completed. When it is satisfied that the record is complete and a psychiatric examination adequate for rating purposes, the claim should be readjudicated by the RO, resolving all legal and factual issues, including any matters of credibility. Following completion of the above, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case, and the case should then be returned to the Board for further appellate consideration. By this action the Board intimates no opinion, legal or factual as to the ultimate determination warranted. RICHARD B. FRANK 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).