Citation Nr: 0324012 Decision Date: 09/15/03 Archive Date: 09/23/03 DOCKET NO. 97-33 888A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE 1. Entitlement to service connection for a neuropsychiatric disorder diagnosed as depression and anxiety. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his fiancée ATTORNEY FOR THE BOARD Daniel R. McGarry, Counsel INTRODUCTION The veteran had active duty service from March 1969 to March 1972, including service in Vietnam from June 1971 to March 1972. This case came before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in New Orleans, Louisiana, that denied the appellant' s claim for service connection for a psychiatric condition including depression and anxiety. In August 1998, the RO issued a rating decision in which the appellant's claim of entitlement to service connection for post-traumatic stress disorder (PTSD) was denied. The appellant was notified of this rating decision. He did not appeal that decision. However, in a May 2003 rating decision, the RO again considered the claim on its merits and again denied it. In a VA Form 9 filed in June 2003, the veteran took "exception" to and preserved for appeal all pending issues. In August 2001, the Board remanded this matter to the RO for compliance with the Veteran's Claims Assistance Act of 2000 (VCAA). The Board also instructed the RO to attempt to obtain records from several specific sources in an effort to corroborate the veteran's claims that he incurred a psychiatric disorder in service. REMAND As noted in the Board's August 2001 remand, the veteran's service medical records apparently have been irretrievable lost. The Board instructed the RO to assist the veteran by attempting to obtain service medical records from alternate sources. The RO has not fully complied with or has failed to comply with instructions contained in the Board's August 2001 remand, has failed to follow-up on some of its own inquiries concerning Federal government records and efforts to obtain such records, has failed to adequately document its efforts to comply with the Board's instructions, and has failed to notify the veteran of its inability to obtain certain records. Further, the RO has not fully complied with or has failed to comply with the duty to assist and duty to notify requirements of the VCAA. In Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Veterans Appeals (Court) held that a remand by the Board confers on the veteran the right to compliance with the remand order. Upon submission of a substantially complete application, VA must notify the claimant of information and lay or medical evidence needed to substantiate the claim, and must notify the claimant of what portion of that information and evidence is his responsibility, and what is VA's responsibility. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 1.3359(c)(2). If, after continued efforts to obtain Federal records, the VA concludes that it is reasonably certain such records do not exist or further efforts to obtain such records would be futile, VA will provide the claimant with oral or written notice of that fact. VA will make a record of any oral notice conveyed to the claimant. The notice must contain: 1) the identity of the records that could not be obtained; 2) an explanation of the efforts made to obtain such records; 3) a description of any further action that VA will take regarding the claim, including, but not limited to notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain, and; 4) a notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e) (2002). The veteran has also appealed the RO's May 2003 rating decision in which it denied entitlement to service connection for PTSD. It does not appear from the claims file that the veteran has been provided a statement of the case on that issue. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) held that when an appellant files a timely NOD and there is no statement of the case (SOC) issued, the Board should remand, rather than refer, the issue to the RO for the issuance of a SOC. The Board has noted that nonservice-connected stressors, including injuries sustained in post-service accidents, have been identified as the cause of the veteran current disability from his neuropsychiatric disorders. The veteran was awarded Workman's Compensation after a job-related accident. He also sustained injuries in an automobile accident. The records that pertain to his treatment for these injuries must be obtained. Accordingly, this matter is again remanded for compliance with the Court's holding in Manlincon, supra, and the Board's August 2001 remand order, including the following: 1. Obtain the names and addresses of all medical care providers who have treated the veteran for a psychiatric disorder since his separation from service in March 1972. Take all necessary steps to obtain any pertinent records that are not currently part of the claims folder and associate them with the claims folder. 2. To assist the veteran in his efforts to substantiate his claim for service connection for anxiety and depression, the veteran should be advised of the evidence necessary to substantiate and prove that he is entitled to service connection for such disorders. Inform the veteran which of such evidence VA will obtain, and which of such evidence he must obtain. Further, if the veteran identifies evidence that he requests VA to obtain and such evidence cannot be obtained, notify the veteran of the inability to obtain such evidence. See 38 C.F.R. § 3.159 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). 3. Attempt to obtain records in the custody of appropriate Federal government agencies, including contacting the appropriate authority to obtain morning reports, records of the United States Office of the Surgeon General, and the Director of the National Archives and Records Administration. Document all efforts to obtain any such records, conduct necessary follow-up efforts to obtain such records, and, in the event that such records do not exist or are not obtainable and further efforts to obtain any such records would be futile, so notify the veteran, and advise him that ultimately it is his duty to obtain any such records. 4. Attempt to obtain records pertaining to the veteran in the custody of Armed Forces Entrance Examination Station (AFEES), (also known as Military Examination and Processing Station (MEPS)), New Orleans, Louisiana, and USA receiving Station (3160), and all indicated Army facilities indicated by a review of the file as possibly having records pertaining to the veteran's treatment during his service. Document efforts to obtain any such records, conduct necessary follow-up efforts to obtain such records, and, if such records do not exist or are not obtainable and further efforts to obtain any such records would be futile, so notify the veteran, and advise him that ultimately it is his duty to obtain any such records. 5. Take appropriate steps to secure the rest of the appellant's service personnel records, including investigation reports, performance evaluation reports, and reports pertaining to disciplinary actions, including reduction in rank or Article 15 proceedings, from the Official Military Personnel File (OMPF) or from any other appropriate source. Document efforts to obtain any such records, conduct necessary follow-up efforts to obtain such records, and, if such records do not exist or are not obtainable and further efforts to obtain any such records would be futile, so notify the veteran, and advise him that ultimately it is his duty to obtain such records. 6. Obtain all records associated with the veteran's application(s) for and award(s) of and suspension and/or termination of benefits administered by the Social Security Administration, including the application(s), all medical and other evidence and exhibits, and the decision(s) awarding and/or suspending or terminating such benefits. Document all efforts to obtain all such records, conduct necessary follow-up efforts to obtain such records, and, if such records do not exist or are not obtainable and further efforts to obtain any such records would be futile, so notify the veteran, and advise him that ultimately it is his duty to obtain any such records. 7. Ask the veteran to provide details concerning the "who, what, where and when" for each of the claimed in-service stressors. He should provide the names and units of personnel who were casualties in any such incident and details to identify the unit(s) to which he was assigned at the time of each of the claimed stressors. He should describe each incident in as much detail as possible. He should be advised that such information is necessary to obtain supportive evidence of the stressful events. 8. If additional evidence concerning the claimed stressors is received, request the United States Armed Services Center for Research of Unit Records (USASCRUR) to provide any information available which might corroborate the incidents alleged by the appellant. This should include obtaining information pertaining to whether a trainee at Fort Campbell name "Daniels" disappeared between June and August 1969, whether charges were pressed against drill instructors with the 6th Training Battalion of the Second Training Brigade USATC at Fort Campbell between June and August of 1969, whether any drill instructors or company commanders with the 6th Training Battalion of the Second Training Brigade USATC at Fort Campbell were transferred between June and August 1969, and, if so, the circumstances of an such transfer(s), whether the appellant was the only African-American soldier in the battalion at that time, including information perhaps recorded in Training Battalion and/or Company E. Histories, if any, and whether a "Sgt. Smith" was killed in Vietnam between June 7, 1971, and March 15, 1972. 9. The appellant and his representative should be furnished a SOC regarding the denial of service connection for PTSD. See Manlincon, supra. 10. Ask the appellant to provide the name and address of all medical care providers who have treated him for degenerative disc disease of the lumbar spine, including records associated with the three surgeries (laminectomies) referred to in the decision awarding his Social Security disability benefits. After obtaining the necessary releases from the veteran, obtain such records and associate them with the claims folder. 11. After securing the necessary releases and with assistance from the appellant as needed, secure copies of the medical records associated with the award of Workers Compensation benefits after his work-related back injury in 1988. 12. After securing the necessary releases and with the assistance of the appellant, obtain all treatment records associated with the veteran's treatment for injuries sustained in an automobile accident in November 1999. 13. After the foregoing development is completed to the extent possible, the veteran should be afforded a VA neuropsychiatric examination. The examiner must review the claims folder. All indicated tests should be conducted. The examiner should provide a diagnosis of the veteran's neuropsychiatric disorder, if any, and express an opinion whether any disorder diagnosed is related to the veteran's military service. The examiner should express an opinion concerning whether any psychiatric disorder identified had its onset during the veteran's service or is related to a stressor the veteran experienced in service, as opposed to a disease or injury incurred after the veteran's separation from service. If a diagnosis is different from previously reported diagnoses, the examiner should attempt to reconcile the differing diagnoses. 14. Thereafter, readjudicate the veteran's claim now before the Board on appeal. If the benefit sought on appeal continues to be denied, the appellant and his representative should be provided a supplement statement of the case (SSOC) on the issue of entitlement to service connection for depression and anxiety. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant 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 2002) (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. _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2002).