Citation Nr: 0315091 Decision Date: 07/08/03 Archive Date: 07/17/03 DOCKET NO. 00-13 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service-connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased evaluation for bilateral hearing loss, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service in the Army from August 1968 to April 1970, including eleven months in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that denied the appellant's claims of entitlement to service connection for post-traumatic stress disorder (PTSD) and entitlement to an evaluation in excess of 10 percent for bilateral hearing loss. In his May 2000 substantive appeal, the appellant requested a hearing with a Member of the Board at the RO. In August 2000, the appellant withdrew in writing his request for a hearing of any kind before the Board. Accordingly, his hearing request has effectively been withdrawn. 38 C.F.R. § 20.704(e). REMAND In Cohen v. Brown, 10 Vet. App. 128, 138 (1997), the United States Court of Appeals for Veterans Claims (Court) interpreted the version of Section 3.304(f) then in effect and held that the elements required to establish service connection for PTSD are 1) a current, clear medical diagnosis of PTSD, which is presumed to include both the adequacy of the PTSD symptomatology and the sufficiency of a claimed in- service stressor; 2) credible supporting evidence that the claimed in-service stressor actually occurred; and 3) medical evidence of a causal nexus, or link, between the current symptomatology and the specific claimed in-service stressor. For the purposes of establishing service connection, a stressor is a traumatic event 1) to which the veteran was exposed during active service and in which the veteran "experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others"; and 2) which produced in the veteran a response involving intense fear, helplessness, or horror. Cohen, at 141 (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994) (DSM-IV)). It is the distressing event, rather than the mere presence in a "combat zone," that may constitute a valid stressor for the purposes of supporting a diagnosis of PTSD. Cohen, at 142 (citing Zarycki v. Brown, 6 Vet. App. 91, 99 (1993)); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). To determine what evidence is needed to verify the existence of the claimed in-service stressor, it must be determined whether or not the veteran engaged in combat with the enemy, or served in combat. If the claimed stressor is related to the veteran having engaged in combat with the enemy, it must be determined whether the claimed in-service stressor is consistent with the circumstances, hardships, or conditions of the combat in which he participated. See 38 U.S.C.A. § 1154(b). If the veteran did not serve in combat, alleged service stressors must be corroborated by service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Cohen v. Brown, 10 Vet. App. 128 (1997). In an opinion dated in 1999, VA's General Counsel provided some guidance for determinations of whether a veteran engaged in combat with the enemy for purposed of 38 U.S.C.A. § 1154(b). VAOPGCPREC 12-99 (O.G.C. Prec. 12-99). According to the opinion, the ordinary meaning of the phrase "engaged in combat with the enemy" requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Reasonable evidence to support a determination that the veteran engaged in combat may include the veteran's own statements, but, in most instances where he has not been awarded a combat-related citation, will include a consideration of all of the evidence of record in each case. The fact that a veteran participated in a particular operation or campaign does not necessarily establish that the veteran engaged in combat, although such evidence may be significant when viewed in relation to other evidence of record. In this case, the record does not contain any indication whether the RO decided the question of whether or not the appellant engaged in combat. Nor is there any indication that the RO considered the holdings of the Court in Cohen or Pentecost, supra. The RO did attempt to verify the stressor incidents described by the appellant by contacting the United States Armed Services Center for Research of Unit Records (USASCRUR) (formerly the U.S. Army and Joint Services Environmental Support Group (ESG)). The October 2002 response from USASCRUR contains documents that indicate that various locations of the 86th Maintenance Battalion to which the appellant's unit, the 98th Light Equipment Maintenance Company, was attached, underwent documented attacks. In Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court stated that the veteran's unit records constituted independent descriptions of rocket attacks that were experienced by the veteran's unit when he was stationed in Vietnam, which, when viewed in the light most favorable to the veteran, objectively corroborated his claim of having experienced rocket attacks. The Court reiterated that, although the unit records did not specifically identify the veteran as being present during the rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred suggested that he was in fact exposed to the attacks. The record currently does not contain specific information from the appellant concerning rocket or mortar attacks. The record does reflect that the appellant reported, in May 2000, that the perimeter to the compound was overrun approximately three months before his tour ended and that his best friend died that night. As noted by the USASCRUR, morning reports can be used to verify daily personnel actions and they are available from NPRC. If necessary, the appellant should be offered an opportunity to provide additional specific information that would permit further search regarding stressors. The appellant should be asked if he has remembered any more details, particularly names of individuals wounded or killed, and he should be reminded that he can also provide "buddy statements" that include more particular details. Regarding non-combat stressors, Court has held that "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The VA Adjudication Manual M21-1 (M21-1) provides that the required "credible supporting evidence" of a non-combat stressor "may be obtained from" service records or "other sources." M21-1, part VI, formerly 7.46. The record contains references the appellant's receipt of Social Security Administration (SSA) disability benefits, namely Supplemental Security Income (SSI). It has been resolved in various cases, essentially, that although SSA disability decisions are not controlling for VA purposes, they are pertinent to the adjudication of a claim for VA benefits, and that the VA has a duty to assist the veteran in gathering SSA records. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The records relied upon by SSA in making any determination relating to disability benefits should be obtained and associated with the claims file. The Board notes that the report of the VA ear disease examination conducted on June 8, 2001 refers to an audiogram, but the claims file does not contain any such audiogram. This record should be associated with the claims file. In addition, while the case was in appellate status, the Court clarified the scope of the duty to assist provisions contained in the VCAA. In particular, the Court has found that the provisions of 38 U.S.C.A. § 5103(a) must be fulfilled satisfactorily before a case is ready for Board review. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). See also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002). 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 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2002). In particular, the RO must notify the appellant of the information and evidence needed to substantiate his claims and of what part of such evidence the Secretary will attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). See also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002). 2. The RO should contact the SSA to obtain official documentation of any pertinent application for benefits filed by the appellant, including the List of Exhibits associated with any SSA Administrative Law Judge (ALJ) decision, as well as copies of all of the medical records upon which any decision concerning the appellant's entitlement to benefits was based. All of these records are to be associated with the claims file. 3. The RO should obtain all VA audiology records, particularly the audiograms performed in conjunction with the appellant's May 2001 VA ear disease examination, and associate them with the claims file. 4. Thereafter, the appellant should be accorded a VA audiometric examination to determine the current severity of his bilateral hearing loss. The claims file must be made available to the examiner for review in conjunction with the examination. All appropriate tests should be conducted and all pertinent clinical findings should be set forth in detail. 5. The RO should ask the appellant to provide a list with the names and addresses of all VA and/or private medical care providers who have treated him for any psychiatric disorder from 2001 onward. After securing the necessary release(s), the RO should obtain copies of those records not already in evidence and associate them with the claims file. 6. The RO should also ask the appellant to provide any additional details concerning stressors, particularly names of individuals wounded or killed, that he may have remembered. He should also be reminded that he can also submit "buddy statements" containing verifiable information regarding the events claimed as "stressors" during his military service. All of these statements should include specific details about the events, such as dates, places, and names of individuals involved in the events. The appellant should be advised that this information is vitally necessary to obtain supportive evidence of the stressful events he claims to have experienced, and he should further be advised that failure to respond may result in adverse action. 7. The RO should obtain the morning reports for the 98th LEM Company (86th Maintenance Battalion) for the period of December 1, 1969 to February 28, 1970. These can be obtained from: NCPMR-O 9700 Page Avenue St. Louis, MO 63132 8. The RO should determine whether the appellant is a veteran of combat and if there are any verified non-combat stressors. 9. If the appellant is a veteran of combat or if there are any verified non- combat stressors, the RO should list the verified stressors, if any, and arrange for a VA psychiatric examination of the appellant to determine the nature and extent of any psychiatric disorder present, and specifically to determine whether PTSD is present, and, if so, whether it is linked to the appellant's verified inservice stressor(s). The entire claims file must be reviewed by the VA psychiatrist in conjunction with the examination. The report should reflect consideration of the appellant's psychiatric treatment history and diagnoses rendered. The examiner should conduct the examination with consideration of the DSM-IV criteria for PTSD. If a diagnosis of PTSD is appropriate, the examiner should specify the credible "stressor(s)" that caused the disorder, and the evidence relied upon to establish the existence of the stressor(s). The examiner should also describe which stressor(s) the appellant re-experiences and how he re-experiences them. If there are no stressors, or if PTSD is not found, that matter should also be specifically set forth. The examination report should include a detailed account of all psychiatric and/or psychological pathology found to be present. The report should also reflect the examiner's review of the claims file. The results of all psychiatric and psychological evaluations of record should be discussed. If the examiner lists a psychiatric diagnosis other than PTSD, the examiner should indicate whether or not each diagnosed condition is as likely as not attributable to any disease, injury or incident suffered during the appellant's active military service. If these matters cannot be medically determined without resort to mere conjecture, the examiner should so indicate. 10. Thereafter, the RO should readjudicate the appellant's PTSD service connection claim and his hearing loss increased rating claim. That readjudication should also reflect application of all appropriate legal theories, including the provisions of 38 C.F.R. §§ 3.304, 3.321(b), 4.86 and relevant Court cases such as Pentecost v. Principi, 16 Vet. App. 124 (2002) and Cohen v. Brown, 10 Vet. App. 128 (1997). If the benefits sought on appeal remain denied, the appellant and the appellant's representative should be provided an SSOC. The SSOC must contain notice of all relevant actions taken on the claims 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. 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). The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. 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 appellant need take no action unless otherwise notified. 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. C. P. RUSSELL 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).