Citation Nr: 0006180 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-12 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for psychiatric disability, including post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from January 1980 to June 1980. This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. REMAND The veteran seeks entitlement to service connection for psychiatric disability, including PTSD. In May 1993, the RO received the veteran's original claim of entitlement to service connection for PTSD. In December 1993, the RO denied that claim. On January 4, 1994, the RO notified the veteran of that decision, as well as his appellate rights. In November 1994, the veteran requested that his claim of entitlement to service connection for PTSD be reopened. Later that month, the RO sent the veteran a letter reiterating the reasons why service connection for PTSD had been denied. The RO reminded the veteran that he had one year from the January 4, 1994, notice to appeal that decision. Still later in January 1994, additional VA medical records were received. On February 8, 1995, the RO found new and material evidence had not been received to warrant reconsideration of the claim of entitlement to service connection for PTSD. Later that month, he was notified of that decision. In August 1995, additional medical records were received in support of the veteran's claim. In January 1996, the RO continued to deny entitlement to service connection for PTSD. In March 1996, a timely NOD was received from the veteran, and in May 1996, he was issued a Statement of the Case (SOC). In October 1996, following a hearing at the RO, the hearing officer confirmed and continued the prior denials. In October 1996, the RO issued a Supplemental Statement of the Case (SSOC), and the following month, the veteran's substantive appeal (VA Form 9) was received. This case has been considered by the RO on the basis that the December 1993 and February 1995 decisions became final, because each was not timely appealed. However, the veteran's November 1994 written expression of continued desire to pursue a claim for service connection for PTSD fell within the one year period to file an NOD; and, therefore, the December 1993 decision could not have been final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302(a) (1999). As such, this case has been in continuous development since May 1993, when the veteran submitted his original claim of entitlement to service connection for psychiatric disability, including PTSD. Accordingly, the Board is of the opinion that issues of finality do not attach and that the claim should be reviewed de novo. During his hearing at the RO in September 1996, the veteran testified that his PTSD was primarily the result of his proximity to a grenade explosion during training in service. He also testified that it was the result of the humiliation he felt after receiving disciplinary action in front of his unit in service. Finally, he testified that it was the result of physical assaults in service. There is no evidence that the RO has determined that the veteran alleged stressors are related to combat service, or that the RO has attempted to verify the claimed stressors. During a VA audiologic examination in September 1987, it was noted that the veteran had had blast exposure in service. The most recent evidence from the VA Medical Center (MC) in Tomah, Wisconsin, which is dated through May 1999, shows that the veteran's was treated for mental health problems. In February 2000, however, less than 90 days after being notified that his case was being forwarded to the Board, a statement was received from the veteran which indicated that there was additional evidence at the Tomah VAMC which could support his claim. He stated that on January 31, 2000, his doctor confirmed the presence of PTSD. No attempt has been made to obtain such VA records, and the veteran has not waived RO consideration of his statement or the identified available VA records. In light of the foregoing, the Board is of the opinion that additional development of the record is necessary prior to further appellate consideration. Accordingly, the case is remanded for the following actions: 1. The RO should request that the veteran provide the names, addresses, and approximate dates of treatment or examination, for all health care providers who may possess additional records relevant to the issue of entitlement to service connection for psychiatric disability, including PTSD. After obtaining any necessary authorization, the RO should request copies of all indicated records not currently on file directly from the providers. Such records should include, but are not limited to, mental health treatment records from the VAMC in Tomah, Wisconsin, dated since May 1999. The RO should also request that the veteran provide any additional relevant medical records he may possess. Failures to respond or negative replies to any request must be noted in writing and associated with the claims folder. 2. If the RO determines the veteran did not engage in combat activity with the enemy, or that the veteran's alleged stressors are not related to combat service, the RO should prepare a summary of the alleged stressors. A copy of the summary of the veteran's stressor statements and pertinent service personnel records should be forwarded to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Springfield, Virginia 22150-3197 for verification, to the extent possible, of the specific incidents alleged by the veteran. Failures to reply or negative responses to any request must be noted in writing and associated with the claims folder. 3. When the foregoing actions have been completed, and if it is established that the veteran sustained a verified stressor in service, the RO should schedule the veteran for a psychiatric examination to determine the nature, etiology, and extent of any psychiatric disability found to be present. All indicated tests and studies should be performed, and any indicated consultations should be scheduled. The claims folder must be made available to the examiner so that the relevant medical history may be reviewed. A diagnosis of PTSD should be confirmed or ruled out. Should PTSD be found, it is requested that the examiner identify and explain the elements of the diagnosis including the stressor(s) accountable for the disorder. The rationale for all opinions expressed must be provided. 4. When the foregoing development has been completed, the RO should undertake any other indicated development and then readjudicate the issue of entitlement to service connection for psychiatric disability, including PTSD. In so doing, the RO should conduct a de novo review of the evidence pursuant to the veteran's May 1993 claim. If the benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative must be furnished a SSOC and afforded an opportunity to respond. Thereafter, if otherwise in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of the issue. The veteran need take no action until he is notified. It must be emphasized, however, that he does have the right to submit any additional evidence and/or argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-373 (1999). U. R. POWELL 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).