Citation Nr: 0003273 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 97-33 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Associate Counsel INTRODUCTION The veteran served on active duty with the Marine Corps from September 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied a claim for a disability rating in excess of 10 percent for PTSD. In a July 1997 rating decision, a 30 percent disability rating was granted, effective November 12, 1996. In a June 1999 hearing officer's decision, a 50 percent schedular evaluation was granted, effective November 12, 1996. Although the increase represented a grant of benefits, a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). REMAND The veteran's DD Form 214 reflects that he served in the Republic of Vietnam and that his military specialty was wireman. His service medical records show that while he was stationed in Vietnam he complained of breathing problems with no apparent physical cause and was given a tranquilizer. Those records indicate that prior to service the veteran had sustained a facial injury when he was struck by fragments of a carbon dioxide cartridge that was thrown into a fire and exploded. His mental status was noted to be normal on the service discharge examination. In 1986 the veteran filed a claim for service connection for PTSD. Extensive private medical records were submitted in January 1987. Those records are dated from about 1974 to 1983 and for the most part reflect physical illnesses and injuries. They also indicate that prior to service the veteran had been stabbed and required a temporary colostomy. The records also show in that in February 1975 the veteran complained of being very depressed, with a diagnosis of anxiety reaction; in February 1976 he reported being afraid of something unknown, with an impression of agitated depressive reaction; and that on a few occasions in 1983 he complained of fear, depression, and anxiety. On a medical history form, he reported that his symptoms were deep depression and fear greater than that experienced in the rice paddies and that it had begun in about 1975 when he had a "fear attack" at work for no apparent reason, that he always felt he had to protect himself at work, and that he felt fine anywhere else except when he would get an anxiety attack. The veteran was afforded a VA psychological evaluation in March 1987. Based on the results, the diagnostic possibilities were noted to include PTSD, anxiety reaction, depression and exaggeration of symptoms to obtain some goal. It was noted that a thorough history should be taken of the veteran's combat experiences. At the time of a VA psychiatric examination in March 1987, the veteran stated that a friend, who he had known for six months, named "[redacted]" was killed a few days before he was killed a few days before he was to leave Vietnam. The veteran also reported having been in several firefights. The claims file was not available to the examiner who diagnosed "possible" PTSD and dysthymic disorder, stating that the diagnoses would best be confirmed by reviewing records from he veterans' recent VA hospitalization. The report of hospitalization from October to December 1986 was then obtained and reflects that the veteran reported being a combat veteran and that he final diagnoses were chronic panic disorder; dysthymic disorder; possibility of PTSD; and mixed characterological disorder. In 1987, service connection was granted for PTSD without any stressor verification or a firm diagnosis of PTSD. Subsequent VA examination reports reflect diagnoses of PTSD noting the veteran's unverified history of having been exposed to combat while serving with a line infantry company for most of his tour in Vietnam. When he was examined by Kaiser Permanente in March 1996 for evaluation of probable depression, the veteran reported having worked for the postal service for eight years, during which he had "never had any problems" until the recent arrival of a supervisor with whom the veteran and his coworkers had had problems. The veteran stated that the stress of work was creating significant anxiety and depression and that his symptoms included obsessing about the work situation, nightmares, feeling helpless and hopeless, intermittent insomnia, poor energy, loss of libido, pan anhedonia, and low self esteem. The veteran was noted to have had PTSD after Vietnam and to have eventually rehabilitated himself, to have attended college where he had a 3.75 average, and to have found a job with the post office. He roported that he "felt no recurrent symptoms of PTSD or depression ever since that time," and he had been off medication for the past nine years. In February 1996 he had been seen at an Urgent Care facility because he felt so overwhelmed. He was given Prozac. Following a current mental status examination the diagnosis was major depression, severe, without psychotic features; a GAF of 51 was assigned. When he was seen at Kaiser in April 1996, he reported feeling that he was a "9" on a scale of 1 to 10, with 10 being the best. The impression was major depression in early remission. When the veteran was seen again in October 1996 he stated that he was back at work and doing well, that he had not missed any work and that he was handling the work situation well. The impression was major depression, single episode. When the veteran was examined by the VA in December 1996, less than three months after the October 1996 visit to Kaiser Permanente, he elaborated on his purported Vietnam experiences, alleging incidents that had not previously been mentioned and have never been corroborated. He also expressed psychiatric symptoms inconsistent with his presentation to the Kaiser examiner only a few months earlier. The examination resulted in diagnoses of PTSD with paranoid manifestations, severe depression, and alcohol abuse. However, the validity of an MMPI in December 1996 indicated that a standard interpretation of the profile would not reflect an accurate picture of the veteran's psychological functioning was ere noted to resulted in an assessment of an invalid MMPI profile in that the veteran endorsed " an unlikely collection of very deviant items." The profile was deemed to be of questionable validity so that the determination of whether the veteran has PTSD would have to be made on some other basis. Subsequent medical records on file note that the veteran reported increasing problems at work and various psychiatric symptoms, tending to relate his psychiatric problems to Vietnam and expressing homicidal and suicidal ideation. At the time of a March 1998 VA psychiatric examination, the examiner noted that the claims file was not available and stated that since the veteran's diagnosis of PTSSD had been established, "the details of his trauma are undoubted to be found in his records." His continuing difficulties at the post office were noted, along with mention of a class action suit for harassment by management. It was noted that he had some supportive relationships at work and had been effective in pursuing his complaints so that one manager had been demoted. Nightmares with content from the veteran's combat, the loss of a buddy, and other references to Vietnam were noted. The diagnoses were PTSD, recurrent depression secondary to PTSD, and alcohol abuse in remission. The GAF score was 48, noted to result in serious impairment in social and occupational functioning During November 1998 to January 1999 hospitalization at the West Los Angeles, California, VA Medical Center, the veteran reported that he had pending Workers' Compensation and disability claims against his current employer, the United States Postal Service. The RO obtained the treatment records for that hospitalization prior to the actual date of discharge. The veteran has been treated by Kaiser Permanente, and he is currently being treated by V. Valenzuela, M.F.C.C., who opined that the veteran's disruptive behavior at work was due to PTSD and was consistent with his symptoms since returning from Vietnam. It was further opined that it was very likely that the veteran would not be able to return to work because of his PTSD. The record in this case raises certain questions. Despite various diagnoses of PTSD, there is also medical evidence suggesting that the veteran may not have active PTSD, such as the reports of psychological testing and the medical reports that only diagnose some type of depression. Additionally, the veteran's report of stressors has been enhanced over time and none of the stressors has been verified. Since the proper rating for PTSD depends on whether the veteran actually now has PTSD and since the matter of whether any major depression is related to PTSD is relevant to his psychiatric rating, the Board finds that the case must be remanded for the following: 1. After reading the above narrative, the RO should ask the veteran to provide a stressor statement giving the full name of his buddy "[redacted]" who purportedly was killed in Vietnam, the approximate date of [redacted]'s death, and the unit(s) to which [redacted] and the veteran were members at the time, along with a detailed statement of the incident resulting in [redacted]'s death. The veteran also should further identify his friend "[redacted]" who purportedly was killed a few days before he was to leave Vietnam. The veteran should state that individual's first and last names, the approximate date of death, the manner of death, the individual's unit, and how the veteran learned of the death. The veteran should also relate in detail all experiences in Vietnam that he believes caused him to have PTSD. He is advised that the statement should be comprehensive and detailed. 2. The veteran has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 3. The RO should obtain the veteran's service personnel records to include all records that in any way refer to the dates of the veteran's tour of duty in Vietnam, the units to which he was assigned in Vietnam, the dates he was assigned to his duties in each unit, and any records that tend to show he engaged in combat with the enemy. 4. Thereafter, copies of the veteran's stressor statement, DD Form 214, his service personnel records, and any other relevant information should be forwarded to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), formerly the U.S. Army and Joint Services Environmental Support Group, for corroboration of the claimed stressors. Additionally, any unit histories or similar information that USASCRUR can provide will be helpful. 5. With the veteran's consent, the RO should try to obtain any psychiatric records from Kaiser Permanente subsequent to those now on file, any additional VA records especially from the West Los Angeles, California, VA Medical Center and the Bakersfield, California, VA Satellite Outpatient Clinic, and actual treatment records from Vernon Valenzuela, along with Mr. Valenzuela's curriculum vitae, if available. The veteran should be asked to identify any other sources of psychiatric treatment or evaluation that are not currently on file and the Ro should obtain them. 6. The RO should contact the veteran and ask him whether he has ever filed a claim for Social Security disability benefits and whether any Workers' Compensation claim or other claim for disability benefitshas been based on a psychiatric disorder. If the veteran has ever filed a claim for Social Security disability benefits or a Workers' Compensation or other disability claim based on a psychiatric disorder, the RO should try to obtain a copy of the claims forms, any relevant medical records, and any decision by the Social Security Administration or other adjudicative body. 7. With the veteran's consent, if needed, the RO should obtain any pertinent records from United States Postal Service, where the veteran has worked after discharge from service, regarding the veteran's performance, behavior and any psychiatric problems, any performance evaluations, and any associated documents including medical reports. If the Postal Service does not maintain such records, the RO should ascertain where they are kept and then request them. 8. The veteran should identify any class action lawsuit or other legal proceeding of which he is a member of the class or otherwise a party that has been brought against his employer, the US Postal Service. The RO should then try to obtain copies of any pleadings or other available documents in respect to such action. The court in which any action was brought and/or the veteran's attorney are possible sources of information. 9. The RO should inform the veteran of the importance of a VA examination for his claim of an increased rating for PTSD and that, under 38 C.F.R. § 3.655 (1999), his claim for an increased rating for PTSD will be denied if he fails to report for a VA psychiatric examination without good cause. Notification of the examination date should also be documented in the claims folder. 10. After the above has been completed to the extent possible and any additional evidence has been added to the claims folder, the veteran should be afforded a VA psychiatric examination to determine the correct diagnoses and manifestations of all active mental disorders present. If at all possible, the examination should be performed by a board consisting of a board-certified psychiatrist and a doctorate level clinical psychologist, neither of whom has examined or treated the veteran previously. Prior to the examination, both examiners should review this entire remand and if feasible the claims folder. If deemed potentially helpful, the veteran should again be afforded psychological tests. It is essential that each examiner actually examine the veteran either jointly or separately and that each examiner thoroughly review the claims file prior to rendering a diagnosis. If the veteran is believed to have PTSD, the examiners must specify the stressors and must note whether there is corroboration of any stressor in material provided by USASCRUR or otherwise of record. Absent corroborating evidence, a claimed stressor should not be used as a basis for a diagnosis of service-related PTSD. If the examiners do not diagnose PTSD but do diagnose any other chronic, acquired psychiatric disorder(s), they should express an opinion as to whether any such disorders had their onset in service, explaining the rationale for the opinion. If service-related PTSD is diagnosed, the examiners should express an opinion as to whether the veteran's depression (diagnosed at times as major depression) was caused by or permanently worsened by PTSD or is otherwise related to service. The examiners also should report the veteran's complaints and their findings as they would in any comprehensive psychiatric rating examination and in sufficient breadth and detail to address the current psychiatric rating criteria. A Global Assessment of Functioning (GAF) score should be provided. If there are multiple diagnoses, the examiners should attempt to distinguish the symptoms of each and indicate the extent to which each of the multiple disorders contributes to the GAF score. If necessary, the examiners may express their opinions in terms of likelihood (i.e., more likely, less likely, or equally likely as not). 11. The RO should then review the examination report. If it is not responsive to the Board's instructions, it is essential that it be amended by the examiner so that the case will not have to be remanded again. 12. The RO should then readjudicate the claim for an increased rating for PTSD and determine whether any depression or other diagnosed psychiatric disorder warrants service connection, including on a secondary basis. Thereafter, the veteran should be notified of the determinations and advised of his appellate rights and of the need to appeal any denial of service connection if he disagrees. The veteran and his representative should be furnished a supplemental statement of the case with applicable laws and regulations not previously included and given the opportunity to respond thereto. No action is required of the veteran until he receives further notice. 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. J. SHARP 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).