BVA9506169 DOCKET NO. 89-07 727 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for residuals of exposure to Agent Orange, including an acquired psychiatric disorder. 2. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for post- traumatic stress disorder (PTSD) on a direct basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from January 1962 to May 1966. He testified at a personal hearing before a traveling section of the Board of Veterans' Appeals (Board) sitting in Roanoke, Virginia, in March 1989. The Board then remanded the issue of entitlement to service connection for residuals of exposure to Agent Orange, including an acquired psychiatric disorder, to the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, in June 1989, because of a May 1989 decision of the United States District Court for the Northern District of California in Nehmer v. United States Veterans Administration, 712 F.Supp. 1404 (N.D. Cal., May 1989), to await new VA regulations concerning residuals of herbicide agent exposure. Separate March 1988 Board decisions denied service connection for an acquired psychiatric disorder, to include PTSD, and for residuals of exposure to Agent Orange. The veteran attempted to reopen his claim for service connection for residuals of Agent Orange, including PTSD, and submitted new evidence in support thereof. A June 1988 rating decision denied the veteran's attempt to reopen his claim for service connection for PTSD, and a December 1988 rating decision denied his attempt to reopen his claim for residuals of Agent Orange; the record is devoid of timely notice to the veteran of the latter action, however. The June 1989 Board remand determined that the issue on appeal should be restyled as entitlement to service connection for residuals of exposure to Agent Orange, including an acquired psychiatric disorder. REMAND It was contended on behalf of the veteran in January 1995 that he also wanted the RO to consider the issue of entitlement to service connection for post-traumatic stress disorder (PTSD) on a direct basis, due to his combat experiences in Vietnam. However, as noted above, the issue of whether new and material evidence had been submitted to reopen the veteran's claim for service connection for PTSD on a direct basis was not addressed in the June 1989 Board remand. Moreover, the Board notes that a January 1989 statement of the case, which denied service connection for PTSD, does not contain the applicable law and regulations on Board decision finality. Additionally, a May 1994 rating decision, and a subsequent June 1994 supplemental statement of the case, do not address the issue of entitlement to service connection for residuals of Agent Orange exposure other than a psychiatric disorder. Consequently, this case is REMANDED to the RO for the following development: 1. The veteran should be permitted to submit any additional evidence that is pertinent to the issues on appeal. He should also be requested to provide the names, addresses, and approximate dates of treatment for all health care providers who have treated him since service discharge for residuals of Agent Orange exposure or psychiatric disability. When the requested information and any necessary authorization have been received, the RO should attempt to obtain copies of all indicated records not currently on file and associate them with the claims file. 2. The veteran should also be requested to provide any information not previously reported, including names, dates, and units involved, in as much detail as possible, on all possible service stressors, including the death of his good friend Donald J. Monahan, the incident in which he reportedly saw a jeep being blown up, and any other incidents in which he saw people killed. 3. If the veteran is able to provide specific information on his service stressors, this information, together with a copy of the veteran's service personnel records and this REMAND, should be forwarded to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197, for verification of the incidents in question. 4. After the above, the veteran should be afforded a special psychiatric examination in accordance with the VA Physician's Guide for Disability Evaluation Examinations, to determine the current nature and severity of all psychiatric disorders. The claims folder must be made available to the examiner for review before examination of the veteran. All necessary tests and studies should be conducted, and all findings should be reported in detail. If PTSD is diagnosed, the examiner should give an opinion whether it can be causally related to any documented service stressor. If other acquired psychiatric disease is found, the examiner should comment on the relationship thereof to Agent Orange exposure, if any. 5. Thereafter, the RO should readjudicate the issues listed on the title page. Readjudication of the issue of entitlement to service connection for residuals of Agent Orange exposure should include physical residuals, such as those noted by the veteran in his October 1988 notice of disagreement. The issue of whether new and material evidence has been submitted to reopen the veteran's claim for service connection for PTSD should be reviewed in light of the United States Court of Veterans Appeals' decision in Zarycki v. Brown, 6 Vet.App. 91 (1993). After the above, if the benefits sought on appeal are not granted to the veteran's satisfaction, a supplemental statement of the case, to include all pertinent law and regulations, should be issued to the veteran and his representative and they should be given an opportunity to respond. The case should then be returned to the Board, if otherwise in order. The veteran need take no action until he is otherwise notified. J. J. SCHULE 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).