Citation Nr: 0007802 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 94-49 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES Entitlement to service connection for a diverticular disorder. Whether there was clear and unmistakable error in the September 20, 1988, rating decision which denied entitlement to service connection for post-traumatic stress disorder (PTSD). Entitlement to an evaluation in excess of 30 percent for PTSD from August 1, 1994, to September 19, 1999. Entitlement to an evaluation in excess of 50 percent for PTSD from September 20, 1999. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from July 1974 to June 1986, and from November 1989 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Phoenix, Arizona, regional office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to special monthly compensation based on a need for aid and attendance or housebound status was originally included on appeal. However, this issue was withdrawn at the July 1996 hearing before the undersigned member of the Board. The evaluation for the veteran's service connected PTSD was increased to 50 percent in an October 1999 rating decision, effective from September 20, 1999. The veteran has not expressed satisfaction with this evaluation. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the issue of entitlement to an evaluation in excess of 50 percent for PTSD remains on appeal. In addition, the issue of entitlement to an evaluation in excess of 30 percent for the period from August 1, 1994, to September 19, 1999, also remains on appeal. These issues will be addressed in the remand section at the end of this decision. FINDINGS OF FACT 1. The service medical records show that the veteran complained of stomach pains shortly before discharge, and the overall evidence reflects a continuation of these symptoms following service. 2. Diverticulitis, which was diagnosed in December 1992, just six months after the veteran's discharge from service, had its onset during active duty. 3. The evidence does not show that the correct facts, as they were known at the time, were not before the adjudicator or that pertinent regulatory or statutory provisions were incorrectly applied in the rating decision dated September 20, 1988. CONCLUSIONS OF LAW 1. A diverticular disorder was incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 2. The September 20, 1988 rating decision that denied entitlement to service connection for PTSD did not contain clear and unmistakable error. 38 U.S.C.A. §§ 5107, 7105 (d) (West 1991); 38 C.F.R. § 3.105 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The veteran contends that he developed diverticulosis during active service. He states that he had stomach pains during service, and that he applied for service connection for this disability immediately following discharge in 1992. He notes that diverticulosis was diagnosed a few months later. The veteran believes that the symptoms for which he was treated in service were the initial manifestations of the disability that was diagnosed soon after discharge. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The claim does not need to be conclusive, but only possible in order to be well grounded. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The appellant has the burden of submitting evidence to show that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for there to be a well grounded claim for service connection, there must be evidence of incurrence or aggravation of a disease or injury during service, competent evidence that the veteran currently has the claimed disability, and evidence of a nexus between the inservice disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The service medical records are negative for findings or a diagnosis of a diverticular disorder. The January 1992 separation examination found that the abdomen and viscera were normal. However, the veteran answered "yes" to a history of stomach, liver, or intestinal trouble on a Report of Medical History obtained at this time. The report stated that this referred to both an appendectomy in 1977, and mild gastritis secondary to non-steroidal anti-inflammatory drugs. The veteran denied melena and nocturnal awakening. The veteran submitted an application for compensation in July 1992. His claims included entitlement to service connection for chronic gastritis. He stated that he had received treatment for gastritis during service in May 1991. The veteran was afforded a VA general medical examination in August 1992. The abdomen was soft and nontender, and there were no organ or masses detected. The examination was negative for a disability of the gastrointestinal system. December 1992 VA hospital records indicate that the veteran presented at approximately midnight on the day of admission with sudden onset left lower quadrant abdominal pain that had started the night before. He described the pain as sharp and severe, and nonradiating. The veteran had associated chills and fevers. There was some diarrhea, but he denied melena, nausea and vomiting. A computerized axial tomography scan of the abdomen was consistent with diverticulitis without any free air or abscess formation. He was treated with antibiotics and improved significantly. The veteran was able to return to normal bowel and bladder function, could ambulate normally, and could tolerate by mouth. He was discharged, but was to be followed up by the surgery clinic. The diagnosis at discharge was diverticulitis. VA treatment records dated December 1992 show that the veteran was seen for complaints of pain in his right lower quadrant. Following examination, the impression was subsidiary diverticulitis of the sigmoid colon. The examiner stated that a sigmoidectomy would be required. Additional VA treatment records show that the veteran underwent sigmoid resection in January 1993. A pre-operative barium enema revealed diverticulosis in the sigmoid colon region. Follow up records dated February 1993 to March 1993 show that the veteran was doing well and healing normally. The veteran appeared at a hearing before the undersigned member of the Board at the RO in July 1996. He testified that he was first diagnosed with diverticulosis in early December 1992. This was approximately six months after his discharge from active service. The decision was made to treat his disability aggressively, and this included surgery. The veteran was no longer able to eat spicy or rich foods. He would experience severe lower bowel problems if he ate the wrong kind of foods. On occasions, he would experience partial loss of bowel control. His disability affected the types of jobs that he could accept, as he needed to be near a restroom at all times. The veteran further testified that he had experienced stomach problems during service, and that this was diagnosed as gastritis on his discharge examination. He stated that he had experienced symptoms during a hospitalization in 1990 for an unrelated disability similar to what he had developed in December 1992. He noted that during service, he was never given the type of tests in service that were used to diagnose his gastrointestinal disability after service. Instead, he was treated with antacids. The veteran noted that he filed a claim for service connection for his stomach complaints immediately after separation from service. See Transcript. Initially, the Board finds that the veteran has submitted evidence of a well grounded claim for service connection for diverticulitis. The service medical records show complaints of symptoms that are consistent with this disability, and a diagnosis of diverticulitis was reached only six months after discharge. The veteran testified that he continued to have gastrointestinal symptoms during the six months between discharge and the diagnosis of diverticulitis, and this testimony is sufficient to show a nexus between his current disability and his complaints during active service. Therefore, the veteran's claim is well grounded. Caluza v. Brown, 7 Vet. App. 498 (1995); Savage v. Gober, 10 Vet. App. 488 (1997). The Board finds that entitlement to service connection for a diverticular disorder is merited. The service medical records are negative for this disability. However, the veteran noted a history of gastrointestinal distress at the separation examination. The veteran's gastrointestinal problems continued, and he submitted a claim for service connection for his complaints soon after his May 1992 discharge. Diverticulitis was diagnosed in December 1992 and diverticulosis was identified on diagnostic testing the following month. The Board finds that as the evidence shows the veteran had symptoms similar to his diverticulitis shortly before discharge in service, and as diverticulitis was discovered only six months after discharge, then service connection for this disability is merited. The Board has resolved all reasonable doubt in favor of the veteran in reaching this decision. 38 U.S.C.A. § 5107 (West 1991). II. Clear and Unmistakable Error The veteran contends that the September 20, 1988 rating decision which denied him entitlement to service connection for PTSD contains clear and unmistakable error. He argues that the RO erred in not obtaining records that would have established the existence of the stressors that led to the development of PTSD, and that the RO should have recognized that he had PTSD from the evidence contained in the service medical records. The record indicates that entitlement to service connection for PTSD was denied in a rating decision dated September 20, 1988. The decision stated that entitlement to service connection for PTSD was denied on the basis that there was no objective evidence of record to show a stressor with related PTSD symptoms. The decision noted that when the veteran was asked to provide his traumatic stressors, he indicated that he was unable to recall what happened in detail. Furthermore, it was noted that the veteran had diagnoses of a personality disorder during service, but that this was considered a constitutional or developmental abnormality and not a disability under the law. The veteran was notified of this decision in a letter dated November 1988. He did not submit a Notice of Disagreement with this decision within the one year period required by law. As the veteran did not initiate an appeal of the September 20, 1988, rating decision within the required time frame, the decision became final and binding, and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.105(a). In order for there to be a valid claim of clear and unmistakable error, the correct facts, as they were known at the time of the original decision, must not have been before the adjudicator, or the proper statutory or regulatory provisions must have been misapplied. The veteran must assert more than a disagreement as to how the facts were weighed or evaluated. The error must be undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell v. Principi, 3 Vet. App. 310, 313 (1992). In assessing the original decision, the regulations in effect at the time of the original rating decision must be examined. Ternus v. Brown, 6 Vet. App. 370, 376 (1994). Clear and unmistakable error is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993), en banc review denied Feb. 3, 1994 (per curium). The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test for finding clear and unmistakable error. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Second, the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made,". Third, a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has further held that a claim of "clear and unmistakable error" is based upon an assertion that there was an incorrect application of the law or fact as it existed at the time of the disputed adjudication. Since an analysis of whether clear and unmistakable error has been committed may only proceed on the record, evidence that was not part of the record at the time of the prior determination may not form the basis of a finding that there was an act of clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 383 (1994). Evidence that was not of record at the time of the decision cannot be used to determine if clear and unmistakable error occurred. See Porter v. Brown, 5 Vet. App. 233 (1993). The laws pertaining to entitlement to service connection are essentially the same as those in effect and pertinent at the time of the September 1988 rating decision. These laws state that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. The current provisions have the same effect as the 1988 law regarding service connection. See 38 U.S.C. §§ 310, 331 (1982). Both the current law and the law in effect in September 1988 state that the VA can request records from any Federal department or agency. 38 U.S.C. § 3006 (1982); 38 U.S.C.A. § 5106 (West 1991). Both the current regulations and the regulations in effect in 1988 state that personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (1988); 38 C.F.R. § 3.303(c) (1999). The evidence considered in the September 20, 1988, decision included the service medical records from the veteran's first period of service, his personnel records from the first period of service, and the report of a January 1988 VA psychiatric examination. The service medical records are negative for a diagnosis of PTSD. October 1983 records include an impression of a conversion disorder. Psychological testing from January 1984 noted that the veteran's history was consistent with that of a conversion disorder, manifested by the development of neurological symptoms during periods of psychological stress. January 1986 records state that the veteran had a probable situational reaction, with frustration, anxiety, and anger. The assessment was an essentially normal neurological and mental status examination, which would seem to indicate no evidence of neurologic illness or overt psychosis, suspect situational reaction with history of conversion reaction. Other January 1986 records contained an assessment of stress related dysfunction, situational reaction. Additional January 1986 records included an assessment of adjustment disorder, mixed personality disorder with schizoid, antisocial, and passive aggressive traits. The May 1986 discharge examination also included a diagnosis of adjustment disorder, mixed personality disorder with schizoid, antisocial, and passive aggressive traits. A review of the veteran's personnel records was negative for any evidence to show that he participated in combat. In an August 1987 letter, the RO requested the veteran to provide a detailed description of the events and experiences in service he believed were the cause of his PTSD. Many particulars were requested, including dates, places, units, and the names of individuals involved. The veteran submitted a reply in September 1987 which indicated that he was unable to recall the stressful events in any detail, except to say that when his ship was in a state of warfare such as participating in war games or shore bombardment, he would lose motor control functions. The veteran was afforded a VA psychiatric examination in January 1988. The veteran reported that he was in Vietnam in 1975 while in the Navy functioning as a grid spot converter. He was stationed aboard ship, but his ship was fired upon on at least two occasions. He was not wounded, but was very frightened. Another stressor cited by the veteran included working with Vietnamese refugees. Following examination, the diagnoses included mixed personality disorder with narcissistic and paranoid features, and PTSD, in association with the veteran's Vietnam wartime experiences. In order to find that the September 20, 1988, rating decision was clearly and unmistakably erroneous, it must be concluded that the evidence of record at the time the decision was rendered was such that the only possible conclusion was PTSD was incurred due to active service. Clear and unmistakable error requires that error, otherwise prejudicial, must appear undebatably. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Such a conclusion cannot be made in this case. The evidence does not show that the correct facts were not before the RO in September 1988, or that the statutory or regulatory provisions were incorrectly applied. There is no diagnosis of an acquired psychiatric disability during service. The January 1988 VA examination contains a diagnosis of PTSD, and stated that this was the result of the veteran's experiences in Vietnam. However, the RO noted that there was no objective evidence that the veteran was exposed to a stressor in service that would result in PTSD. The veteran has argued that the RO was obligated to obtain additional records that would have verified the occurrence of his stressors, and that failure to do so constituted error. However, the Board notes that when the RO requested the veteran to supply the information needed to obtain these records, he failed to do so. He did not supply this information until he reopened his claim following his second period of active service. The Court has stated that the duty to assist is not a one way street, and that the veteran cannot sit passively when asked to produce information in his possession that is relevant to his claim. Wood v. Derwinski, 1 Vet.App. 190 (1991) (affirmed on reconsideration, 1 Vet.App. 406 (1991)). Given the vague nature of his claimed stressors in 1988, and his failure to provide more detailed information for the RO to research and attempt to corroborate, the determination that he did not have verifiable stressors is supportable. The Court has also found that failure to fulfill the duty to assist does not constitute clear and unmistakable error. Crippen v. Brown, 9 Vet. App. 412 (1996). The veteran believes that the information contained in the service medical records and the January 1988 VA examination should have been sufficient to establish service connection for PTSD. Given the evidence of record in September 1988, the decision that was reached was within the judgment of the RO, and is not undebatably contradicted by the evidence. The veteran has offered no more than a disagreement as to how the facts were weighed or evaluated, which does not constitute clear and unmistakable error. Therefore, the Board concludes that the determination of the September 20, 1988 rating decision to deny the veteran entitlement to service connection for PTSD did not constitute clear and unmistakable error. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.105(a). ORDER Entitlement to service connection for a diverticular disorder is granted. The September 20, 1988 rating decision was not clearly and unmistakably erroneous, and the appeal is denied. REMAND The veteran contends that the 30 percent evaluation for his service connected PTSD was insufficient to reflect its severity for the period from August 1, 1994, to September 19, 1999, and that the current 50 percent evaluation remains insufficient. The veteran was afforded a VA psychiatric examination in September 1999. He noted that he had been undergoing VA treatment for his PTSD, but that he had stopped all treatment seven or eight months ago. The examiner noted that the computer medical records showed treatment for PTSD in April 1997. A review of the claims folder indicates that with the exception of a report of a VA examination conducted in April 1996, there are no records of treatment for PTSD between December 1994, and the reported end of his treatment in early 1999. As the veteran has reported undergoing treatment for PTSD during this period, and as the September 1999 VA examiner has noted the existence of VA treatment records that are not contained in the claims folder, the Board finds that the RO should attempt to obtain these records and associate them with the claims folder. The VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107. This includes obtaining all relevant medical records. Therefore, in order to assist the veteran in the development of his claim, the Board finds that these issues must be REMANDED to the RO for the following development. 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for PTSD since December 1994, including any VA facilities. After securing the necessary release, the RO should obtain these records and associate them with the claims folder. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The veteran 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. THOMAS J. DANNAHER Member, Board of Veterans' Appeals