Citation Nr: 0601297 Decision Date: 01/17/06 Archive Date: 01/31/06 DOCKET NO. 04-44 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION The veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD S. A. Mishalanie, Associate Counsel INTRODUCTION The veteran served on active duty in the military from December 1968 to 1974. He also had four years and one month of prior active service. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the veteran's claim for service connection for PTSD. In November 2005, he testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. Unfortunately, however, because further development of the evidence is needed before the Board can make a decision, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2005). Service connection for PTSD, in particular, requires medical evidence establishing a diagnosis in accordance with 38 C.F.R. § 4.125(a) (the diagnosis must conform to DSM-IV and be supported by findings on examination), credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 137-138 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service - to support a diagnosis of PTSD - will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Doran v. Brown, 6 Vet. App. 283, 289 (1994). If VA determines that the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required - provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, VA determines either that the veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain other objective information that corroborates his testimony or statements. See Zarycki, 6 Vet. App. at 98. When there is a current diagnosis of PTSD, the sufficiency of the claimed in-service stressor is presumed. Cohen, 10 Vet. App. at 144. Nevertheless, credible evidence that the claimed in-service stressor actually occurred is still required. 38 C.F.R. § 3.304(f). And credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). Corroboration does not require, however, "that there be corroboration of every detail including the appellant's personal participation in the identifying process." Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Mere presence in a combat zone is not sufficient to show that a veteran actually engaged in combat with enemy forces. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), affirmed on reconsideration, 1 Vet. App. 406 (1991). On the other hand, whether a veteran has submitted sufficient corroborative evidence of claimed in-service stressors is a factual determination. Pentecost v. Principi, 16 Vet. App. 124 (2002). And in both Pentecost and Suozzi, it was held that specific evidence that a veteran was actually with his unit at the time of an attack is not required to verify that attack as a PTSD stressor. Pentecost, 16 Vet. App. at 128 (holding that the Board erred in "insisting that there be corroboration of the veteran's personal participation"); Suozzi, 10 Vet. App. 310-11 (evidence that veteran's company received heavy casualties during an attack, even without specific evidence that the veteran was "integrally involved in the attack" was sufficient to reopen his claim for service connection for PTSD). Pursuant to the holdings in Pentecost and Suozzi, there does not need to be corroboration of each and every detail of a veteran's personal participation in the alleged combat activity in Vietnam. Rather, the mere fact that his unit was involved in that combat activity is reason enough, alone, to presume that he experienced the type of stressor alleged in that capacity. Thus, his combat stressor must be conceded, particularly when all reasonable doubt is resolved in his favor concerning this. See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this particular case at hand, the veteran's service medical records (SMRs) are unremarkable for any psychiatric problems or evidence of a PTSD stressor. His VA outpatient treatment (VAOPT) records indicate he was first treated for complaints of depression in December 2003 - 29 years after being discharged from military service. At that time, he said that he felt his relationship with his wife seemed to be ending and that he was under too much pressure and stress. He also said that his sex life had come to a standstill because of his diabetes, and that he did not feel motivated any longer. He went on to state that he had nightmares and anxious thoughts relating to his first tour of duty in Vietnam. No specific PTSD stressor was noted. He was diagnosed with major depression and a note was made to rule out PTSD. In March 2004, a VAOPT record indicates the veteran said that he was a combat engineer in Vietnam and received a Purple Heart Medal. (In actuality, he was an administrative specialist and did not receive this commendation). He complained of PTSD symptoms, but he did not indicate any specific stressor. A later March 2004 record indicates he also suffered from depression related to chronic pain issues. A social worker diagnosed him with PTSD and Major Depressive Disorder. Although a social worker diagnosed the veteran with PTSD, the basis for this diagnosis is unclear. His VA treatment records do not mention any specific PTSD stressor that would substantiate this diagnosis. Furthermore, he told the social worker that he was a combat engineer and received a Purple Heart Medal, which is untrue. So the social worker's opinion was predicated on an inaccurate premise. See Reonal v. Brown, 5 Vet. App. 458, 494-95 (1993) (the presumption of credibility is not found to "arise" or apply to a statement of a physician based upon an inaccurate factual premise or history as related by the veteran or someone else). Given the questionable basis for the diagnosis of PTSD, a VA PTSD examination is needed before the Board can accurately decide the merits of this case. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (The duty to assist provisions of the Veterans Claims Assistance Act (VCAA) includes the duty to provide medical examinations or obtain opinions if it is determined necessary to decide a claim). In June 2004, the veteran indicated that while he was attached to the 4th Infantry Division at Camp Enari, Pleiku, Vietnam, the camp was attacked (see VA Form 21-4138). He said that from February 2, 1968 through March 1968, Camp Enari was attacked as part of the TET Offensive. He also said they were mortared daily and infiltrated by Viet Cong. He said that he was assigned as a member of a reactionary force. At the November 2005 video-conference hearing, he described being on guard duty at night during these attacks (see Hr'g. Tr., pg. 6). He said the main stressor occurred between January 31, 1968, and February 7, 1968, during the TET Offensive. He alleged that he did not just have administrative responsibilities while in the military, including in Vietnam. The RO requested records from the veteran's personnel file relating to these alleged duty assignments, participation in combat operations, awards and decorations and official travel time outside the U.S. His DD Form 214 confirms he was in Vietnam from May 1967 to May 1968, and the personnel records obtained confirm he was involved in the TET Counteroffensive. Unfortunately, however, the personnel records that were obtained do not indicate where he was assigned during the relevant time period in question. So, on remand, his entire personnel file must be obtained to determine the unit to which he was assigned or attached during the alleged PTSD stressor. Any relevant information should then be forwarded to the U. S. Armed Services Center for Unit Records Research (USASCURR) in an attempt to verify the alleged PTSD stressor(s). Accordingly, this case is REMANDED to the RO (via the AMC) for the following development and consideration: 1. Request all of the veteran's relevant service personnel records - including, in particular, any records pertaining to his duty assignments in Vietnam between January and March 1968, when he allegedly experienced the PTSD stressor at issue. 2. Prepare a letter asking the USASCURR to provide any available information that might corroborate the veteran's alleged stressor in service. In particular, we need any reports of mortar or sniper attacks on Camp Enari, Pleiku, Vietnam, between January 31, 1968 and February 7, 1968. Send USASCURR copies of the personnel records obtained that show the veteran's service dates, duties, and units of assignment, etc. Specifically ask USASCURR or, if necessary, the National Personnel Records Center (NPRC) for any morning reports during this relevant time period. 3. If there is at least one objectively confirmed stressor (or sufficient evidence of a combat stressor that does not need to be independently verified), schedule the veteran for a VA psychiatric examination to determine whether he meets the criteria for a diagnosis of PTSD as set forth in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) (DSM-IV). If so, the examiner is asked to also express an opinion as to whether the PTSD is at least as likely as not (i.e., 50 percent or greater probability) related to the veteran's military service - and, specifically, to a confirmed stressor. (Note: only a confirmed stressor, or a combat stressor not needing to be independently verified, can serve as a viable basis for the diagnosis). To facilitate making these determinations, the claims folder is to be made available to the examiner, and the examiner is asked to indicate that he or she has reviewed the claims folder. A copy of this remand should also be provided. All necessary diagnostic testing and evaluation should be performed, to include any psychometric testing deemed necessary, and the examiner should review the results of any testing prior to completion of the examination report. If an opinion cannot be rendered in response to these questions, please explain why this is not possible or feasible. The examination report should be completely legible. If an examination form is used to guide the examination, the submitted examination report must include the questions to which answers are provided. 4. Review the claims file. If any development is incomplete, including if the examination report does not contain sufficient information to respond to the questions posed, take corrective action before readjudication. 38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268 (1998). 5. Then readjudicate the veteran's claim in light of the additional evidence obtained. If benefits are not granted to his satisfaction, prepare a supplemental statement of the case (SSOC) and send it to him and his representative. Give them time to respond before returning the case to the Board for further appellate consideration. No action is required of the veteran or his representative until further notice is received. By this action, the Board intimates no opinion, legal or factual, as to the ultimate disposition warranted in this case. The veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ Keith W. Allen 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) (2005).