BVA9501174 DOCKET NO. 93-07 842 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder other than post-traumatic stress disorder. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service in the United States Marine Corps from February 1951 until February 1953. He had just over one year of foreign or overseas service and his military occupational specialty was in supply, reportedly in a position like a civilian stock clerk. His general discharge was subsequently upgraded to an honorable discharge in 1982. REMAND This matter comes before the Board of Veterans' Appeals (the Board) from a September 1991 decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). A rating decision of November 1986 denied service connection for a developmental psychiatric disability and acquired psychiatric disability and also held that PTSD was not shown. This was the same holding of the statement of the case of December 1986. A decision of the Board of October 1987, as noted in the service representative's February 1993 VA Form 1-646, only denied service connection for "a psychiatric disorder" and did not address or consider service connection for PTSD. Accordingly, the issue of entitlement to service connection for PTSD will be addressed de novo. At the time of the October 1987 Board decision the evidence showed that during service the veteran had domestic problems because of the illnesses of his brother and stepfather and had persecutory feelings toward others in his outfit following a reduction in rank as a result of having been absent without leave (AWOL). A diagnosis of acute situational maladjustment was changed to emotional instability reaction and he was given a general discharge from service on that basis which, as noted, was subsequently upgraded. During service he had anorexia, insomnia, and coarse of hand tremors. In his September 1986 claim he reported post-service treatment by Dr. George De Trana, for excessive anxiety, beginning in the 1950's. A statement dated in March 1985 (received in September 1986) from that physician reflects treatment from 1957 to 1960 for irritable bowel syndrome and chronic gastritis. The actual treatment records of that physician are not on file. In the September 1986 claim the veteran also listed two lay persons who had knowledge of his anxiety since service discharge. A statement from only one, Michael Caruso (the veteran's brother- in-law) (see page 16 of the October 1992 hearing transcript) was on file at the time of the October 1987 Board decision. Also on file at the time of the October 1987 Board decision were VA outpatient treatment (VAOPT) records from 1979 to 1986. These reflect, in substance, treatment for emotional or psychiatric disability only since 1979 following a business failure and also because of marital discord. He was hospitalized in March 1979 for headaches and on two occasions in 1986 for psychiatric problems. It is only since 1986 that the record shows he began relating any somatic manifestations or psychiatric symptoms to his period of military service and only since 1986 has there been a diagnosis of an acquired psychiatric disorder recorded in the record. The evidence received since the October 1987 Board decision includes statements from and the testimony of the veteran. He reiterated the previously related history of having returned from Korea to stateside duty at which time he had been informed of the death of a close friend in Korea and explained that his reduction in rank for having been AWOL was because without going through the proper channels he had arranged for a fellow soldier to stand the veteran's weekend but that solider had not done so. He also testified that he had not had domestic problems during service but rather, in November 1952 when the AWOL incident occurred, he was planning to get married. However, he also testified that he had only been in the front lines in Korea on one occasion and had never engaged in combat. (See page 4 of the transcript.) He had been in fear of losing his life (page 6 of the transcript) and subsequently had had a guilt about not having fought in combat (pages 3 and 11 of the transcript) and he also testified that he had flashbacks of a skeletal figure of his friend, William Jackson, who had died while the veteran was enroute to stateside duty (pages 8 and 9 of the transcript). The veteran also testified as to alleged stressors during service. He testified that he had seen a dead newborn baby floating in the water (page 4); he had seen a Korean soldier lie down on railroad tracks and be run over by a train (page 5 of the transcript); while unloading shoes from a boxcar had found a shoe with a foot still in it (page 12 of the transcript); and had seen a newborn Amerasian baby thrown into a garbage can (page 24 of the transcript). Also received since the October 1987 Board decision are an October 1991 and an October 1992 statement from a VA social worker which reflect that the veteran had been seen on a weekly basis at a Korean war veterans' therapy group since August 1988 and noted that he related well "to other Korean combat veterans." He had recurrent dreams or intrusive thoughts of (hallucinations) of a friend killed in action and he reportedly exhibited survivor guilt. It was reported that his anxiety, PTSD, and traumatic reactions appeared to be directly related to his wartime experiences, low self-esteem, and current family/financial stress. The statements of the VA social worker appear to assume that the veteran was a combat veteran in Korea and, similarly, a September 1991 statement from a VA psychologist also erroneously assumed that the veteran engaged in combat in Korea, as had some earlier VAOPT records (e.g., that of August 18, 1986). The VA psychologist contested the diagnosis of "immaturity and emotional instability" and while rendering no formal diagnosis appears to suggest that the veteran has PTSD. The veteran also testified that he had been seen at some time in the 1960's by a Dr. Greogioro (pages 25 and 26 of the transcript) who was the family doctor of the veteran's wife, although it is unclear whether the veteran was purportedly treated for physical or psychiatric disability. In the veteran's August 1991 statement, he requested that the VAOPT records from a mental hygiene clinic at the Hines VA Medical facility be obtained as well as more recent records from a VA mental hygiene clinic in Orlando, Florida. However, VA outpatient treatment records from 1979 to 1986 are already on file. Additionally, he requested that he be afforded a VA examination. In view of the foregoing, the case is REMANDED for the following actions: 1. The RO should contact the veteran and request that he provide the current addresses at which Dr. George De Trana and Dr. Greogioro can be contacted and he should be requested to execute and return the necessary authorization forms for obtaining all clinical records of his post- service treatment. In the case of Dr. Greogioro, only records of treatment of the veteran, and not the veteran's wife, should be requested. If obtained, these records should be associated with the claims folder. If no records are obtained, the claims folder should contain documentation of the attempts made. The veteran and his representative should also be informed of the negative results. 38 C.F.R. § 3.159 (1993). 2. The RO should contact Philip Morici at the address provided by the veteran in his September 1986 claim (or at other current address provided by the veteran) and request that such information as is within the personal knowledge of that individual as to the veteran's signs, symptoms, complaints and manifestations of his psychiatric disability be recorded and forwarded to the VA. 3. The RO should obtain all VAOPT records since 1986 from VA mental hygiene clinics at the Hines VA medical facility, and at the VA Mental Hygiene Clinic in Orlando, Florida. When obtained, these records should be associated with the claims folder. 4. The veteran should be afforded a comprehensive VA psychiatric examination to determine what psychiatric disability the veteran now has, i.e., whether he has a character or developmental psychiatric abnormality as opposed to an acquired psychiatric disorder and, specifically, whether he now has PTSD. The cause or etiology of any such psychiatric disability should be specified and if, in light of the fact that the veteran had no combat in Korea, he has PTSD the etiology, causes and the requisite stressors should be set forth in detail. Detailed reasons and bases for all diagnoses and opinions reached should be recorded as should all of the veteran's subjective complaints and all objective findings. The claims folder must be made available for review by the examiner prior to the examination in order to facilitate study of this case and prior to the entering of a final psychiatric diagnosis. 5. Thereafter, the RO should readjudicate the issue of whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder other than PTSD and should adjudicate on a de novo basis the issue of entitlement to service connection for PTSD. Should the case remain in a denial status the veteran and his representative should be issued a supplemental statement of the case and they should be afforded the appropriate period of time within which to respond thereto as to the issue of whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder. The veteran and his representative must be informed that they must file a VA Form 1-9, substantive appeal, if they wish to perfect the appeal of the issue of entitlement to service connection for PTSD if it is denied as part of this ordered adjudication. Thereafter, the case should be returned to the Board for further appellate consideration after compliance with all applicable appellate procedures. No action is required of the veteran until he is notified. MICHAEL D. LYON 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) (1993).