Citation Nr: 0118913 Decision Date: 07/19/01 Archive Date: 07/24/01 DOCKET NO. 97-23 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as secondary to exposure to Agent Orange. 3. Entitlement to service connection for a skin disorder, claimed as secondary to exposure to Agent Orange. 4. Entitlement to service connection for hypertension, claimed as secondary to exposure to Agent Orange. 5. Entitlement to service connection for arthritis with joint stiffness, claimed as secondary to exposure to Agent Orange. 6. Entitlement to service connection for chest pain, claimed as secondary to exposure to Agent Orange. 7. Entitlement to service connection for a bladder dysfunction, claimed as secondary to exposure to Agent Orange. 8. Entitlement to service connection for a kidney dysfunction, claimed as secondary to exposure to Agent Orange. 9. Entitlement to service connection for fatigue, claimed as secondary to exposure to Agent Orange. 10. Entitlement to service connection for peripheral neuropathy, claimed as secondary to exposure to Agent Orange. 11. Entitlement to service connection for a prostate condition, claimed as secondary to exposure to Agent Orange. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney ATTORNEY FOR THE BOARD L. Spear Ethridge, Counsel REMAND The veteran had active duty from February 1967 to January 1969. By rating actions rendered in March 1997 and January 1998, the Regional Office (RO) denied the veteran's claims of entitlement to service connection for an acquired psychiatric disorder, a skin disorder, hypertension, arthritis, chest pain, a bladder dysfunction, a kidney dysfunction, fatigue, peripheral neuropathy, and a prostate condition, all claimed as secondary to Agent Orange exposure. The veteran appealed these determinations to the Board of Veterans' Appeals (Board) which, in May 1999, determined that new and material evidence had been received to reopen previously finally denied claims for entitlement to service connection for an acquired psychiatric disorder, a skin disorder, hypertension, arthritis, chest pain, a bladder dysfunction, a kidney dysfunction, and fatigue, all claimed as secondary to Agent Orange exposure, but denied each claim as not well-grounded after reopening. The Board also determined that the claims for entitlement to service connection for peripheral neuropathy, and a prostate condition were not well grounded, and those claims were also denied. Subsequently, the veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, by order in January 2001, granted a Joint Motion for Remand and For Stay of Proceedings with respect to the issues of entitlement to service connection for an acquired psychiatric disorder, a skin disorder, hypertension, arthritis, chest pain, a bladder dysfunction, a kidney dysfunction, fatigue, peripheral neuropathy, and a prostate condition, all claimed as secondary to Agent Orange exposure. The Joint Motion for Remand and for Stay of Proceedings was also granted with respect to the issue of entitlement to service connection for post-traumatic stress disorder on a direct service-connected basis because the parties determined that that issue had been properly before the Board in May 1999, but that it went unadjudicated. There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Therefore, for these reasons, a remand is required. In an effort to assist the RO, the Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this case. For example, with respect to the issue of PTSD, the Board points out that a claim for entitlement to service connection for PTSD was denied by the Board in a decision dated December 1983. While the veteran's current claims for service connection based upon exposure to Agent Orange were pending, the RO wrote a letter to the veteran, dated January 11, 1999, and acknowledged that a (new) claim for PTSD was under consideration. On February 25, 1999, the veteran submitted a statement and attachments wherein he described the events that he experienced during military service, which he felt contributed to his current claim for service connection for PTSD. There was no medical statement attached. On page 5 of the Joint Motion for Remand and for Stay of Proceedings, it was noted that the claim for PTSD had gone unadjudicated by the Board, and that the record on appeal at "R. 544" stated that there was an opinion from a VA Staff Psychiatrist, who opined "It is my clinical opinion that (the veteran's name stated) is totally disabled as a result of his post-traumatic stress disorder resulting from his combat exposure while in government service." The Board notes, however, that upon several reviews of the claims folder, this record does not appear to be a part of the veteran's claims folder at this time. To no avail, the Board has also compared the certified list that was sent in preparation of the record before the Court, with all VA medical records cited in therein, to the record as it stands now. The VA medical records cited in the certified list for preparation of the record seem to be intact in the claims file, although the Board is unable to find a medical opinion to the effect of the one cited on page 5 of the Joint Motion for Remand and for Stay of Proceedings. Another copy of this VA doctor's opinion should be obtained and associated with the record, if possible. Additionally, all of the veterans' remaining claims for service connection based upon exposure to Agent Orange should be re-adjudicated in light of the recently enacted legislation, and the appropriate development should be undertaken, to include VA medical examination of the veteran. Accordingly, this case is REMANDED for the following: 1. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 2. The RO should obtain the names and addresses of all medical care providers who treated the veteran for PTSD, an acquired psychiatric disorder, a skin disorder, hypertension, arthritis, chest pain, a bladder dysfunction, a kidney dysfunction, fatigue, peripheral neuropathy, and a prostate condition. After securing the necessary release(s), the RO should attempt to obtain these records. In particular a copy of the VA medical opinion cited in the Joint Motion for Remand and for Stay of Proceedings, authored by the veteran's attorney, on page 5 of that document, should be associated with the claims folder. 2. Then the veteran should be afforded a series of VA specialty examinations which correspond appropriately to his claims for service connection for PTSD, and for an acquired psychiatric disorder, a skin disorder, hypertension, arthritis, chest pain, a bladder dysfunction, a kidney dysfunction, fatigue, peripheral neuropathy, and a prostate condition, as secondary to exposure to Agent Orange. The purpose of these examinations is to determine whether the veteran has PTSD from his military service in Vietnam; and whether he has disorders of an acquired psychiatric disorder, a skin disorder, hypertension, arthritis, chest pain, a bladder dysfunction, a kidney dysfunction, fatigue, peripheral neuropathy, and a prostate condition, as secondary to exposure to Agent Orange. The claims folder should be made available to each specialty examiner for review during the course of their respective evaluation of the veteran. The veteran is notified that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158 and 3.655 (2000). 3. Thereafter, the RO should readjudicate these claims. If the benefits sought on appeal remain denied, the veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). 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 issues currently on appeal. An appropriate period of time should be allowed for response. 4. The RO and the veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The appellant, who is the veteran in this case, 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 Supp. 2000) (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. JEFF MARTIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).