Citation Nr: 0840201 Decision Date: 11/21/08 Archive Date: 11/25/08 DOCKET NO. 06-35 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran served on active duty in the military from January 1952 to December 1953. This appeal to the Board of Veterans' Appeals (Board) is from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board is remanding this case to the RO via the Appeals Management Center (AMC) for further development and consideration. REMAND Before addressing the merits of the claim at issue, the Board finds that additional development of the evidence is required. First, a VA examination is needed to determine whether the veteran's PTSD is attributable to his combat during military service in the Korean War. Service connection is granted if it is shown the veteran has disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.303, 3.306 (2008). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). To establish service connection for PTSD, in particular, there must be: (1) medical evidence diagnosing this condition in accordance with 38 C.F.R. § 4.125(a) (2008) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is no longer required. Rather, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f) (2008). The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard, in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 140-141. As to whether the veteran has met his threshold preliminary evidentiary requirement of establishing he has the required DSM-IV diagnosis of PTSD, a May 2005 VA examiner did not make this diagnosis, stating, instead, that a definite extreme traumatic stressor was not able to be identified and that his asserted PTSD symptoms were not identified. Rather, the examiner diagnosed depressive disorder (not otherwise specified), although not PTSD. Nonetheless, a February 2005 VA social worker treatment note gave the veteran a "provisional diagnosis" of PTSD, noting the onset of his emotional problems after his military service in the Korean War. Even more importantly, a July 2006 private psychiatric evaluation report by Dr. F.G. diagnosed the veteran with chronic PTSD-combat related, explicitly stated as according to DSM-IV standards, with a Global Assessment of Functioning (GAF) score of 44, indicative of significant mental health problems. This represents a noticeable deterioration in mental health from the time of his May 2005 VA examination, which assigned a much higher GAF of 60. The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV criteria. VA adjudicators must effectively presume the diagnosis of PTSD was in accordance with the DSM-IV, both insofar as the sufficiency and adequacy of the claimed stressors that predicated this diagnosis. See Cohen, 10 Vet. App. 140-141. Consequently, resolving all reasonable doubt in his favor, see 38 C.F.R. § 3.102, the veteran has satisfied the threshold preliminary requirement of establishing he has a current DSM-IV diagnosis of PTSD. 38 C.F.R. § 3.304(f); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) and Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). 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. Where it is determined, through recognized military citations or other supportive evidence, the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of his service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (as amended by 64 Fed. Reg. 32,807-32,808 (1999)) (effective March 7, 1997) (implementing the decision in Cohen v. Brown, 10 Vet. App. 128 (1997)); see also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). However, where the veteran did not engage in combat or the claimed stressor is non combat-related, the record must contain service records or other credible sources that corroborate his testimony as to the occurrence of the claimed stressor. See Moreau v. Brown, 9 Vet. App. 389 (1996); aff'd, 124 F. 3d 228 (Fed. Cir. 1997). VA's General Counsel has held that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99 (Oct. 18, 1999); 65 Fed. Reg. 6,256-6,258 (2000). The General Counsel also indicated that the determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that he did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that he did not engage in combat. Id. Where a determination is made that the veteran did not "engage in combat with the enemy," or that the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's statements or testimony as to the occurrence of the claimed stressor. See, e.g., West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); see also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). A review of the official military documentation contained in the veteran's claims file reveals that the veteran received the Combat Infantryman Badge (CIB), and his military occupational specialty (MOS) was Army Infantry. See DD Form 214. Therefore, the Board finds that the veteran engaged in combat with the enemy and can be considered a combat veteran within the meaning of 38 U.S.C.A. § 1154(b). The provisions of 38 U.S.C.A. § 1154 (West 2002) "make it abundantly clear that special considerations attend the cases of combat veterans." Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994). Section 1154(b) provides as follows: In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. Nevertheless, the veteran must meet his evidentiary burden with respect to service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). In Beausoleil v. Brown, 8 Vet.App. 459, 464 (1996), the Court recognized that, while § 1154(b) relaxed the evidentiary requirement as to the evidence needed to establish an injury in service, there is essentially no relaxation as to the question of nexus of current disability to service, which requires competent medical evidence. The Board again notes that if combat is affirmatively indicated, then the veteran's lay testimony regarding claimed combat-related stressors must be accepted as conclusive as to their actual occurrence and no further development or corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of such service." Zarycki, 6 Vet. App. at 98. Here, the Board finds that the veteran's statements in the record regarding his combat-related stressors to be credible and consistent with the circumstances of his military combat activity and there is no clear and convincing evidence to the contrary. Specifically, he alleges that with respect to his combat during the Korean War: (a) On March 19, 1953, he was sent to the line of combat, while in Company K or 19, Ninth Infantry Regiment APO 248. The insignia of this unit was the Indian. They assigned him to Papasan Hill in Korea, a mountain where the lines were in combat. (b) Some of his friends were killed in that area of Korea in May 1993. His best friend, Luis Gerena from Naranjito, Puerto Rico, was killed by mortar shellfire one night in an unexpected attack from the enemy. 30- 40 others were also killed that night. During this time, he was in Company K or 19, Ninth Infantry Regiment APO 248. While the enemy attacked with artillery, he stayed in his hole in the ground. He observed anybody who got out of the hole was wounded or killed by artillery fire. (c) On another occasion, a Korean soldier came with his hands up. He saw a fellow soldier kill the enemy solider, and take the dead man's watch as a souvenir. Thus, the next inquiry is whether the veteran's current PTSD diagnosis is causally related to the veteran's combat service. According to McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2) (West 2007); 38 C.F.R. § 3.159(c)(4)(i) (2008); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In that regard, the July 2006 psychiatric evaluation report by Dr. F.G. indicated his PTSD symptomatology was combat- related. The February 2005 VA social worker treatment notes likewise indicate a history of symptomatology with potential etiology extending back to the Korean War. In contrast, the May 2005 VA examiner could not establish a link between his claimed stressor and his psychiatric disorder, especially because that physician could not confirm a PTSD diagnosis. So, he needs to be scheduled for a VA psychiatric examination to determine whether his PTSD, assuming the diagnosis already made by Dr. F.G. is correct, is the result of his combat stressor(s). See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Additionally, with regard to the veteran's claim for PTSD, there was insufficient Veterans Claims Assistance Act (VCAA) notice. Although the RO sent a VCAA notice letter in March 2005, it failed to advise the veteran of what specific evidence is necessary to substantiate his claim for PTSD. As claims for service connection for PTSD, in particular, are distinctive in their evidentiary requirements, this letter also needs to inform him of these nuances concerning this specific type of service-connection claim. That is, the veteran was not advised that establishment of service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulation - 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A revised letter with this information should be sent to the veteran. Lastly, VA needs to obtain all of the veteran's relevant psychiatric treatment records from the San Juan, Puerto Rico VA Medical Center and its Ponce Outpatient Clinic. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive, if not actual, notice of this evidence because it is generated within VA's healthcare system). Although there are scattered records from the Ponce Outpatient Clinic from February 2005- June 2005, and references to San Juan VA Medical Center treatment in the 1980s, it is unclear whether the RO attempted to obtain any of his VA medical treatment records from the Ponce Outpatient Clinic or its parent facility, the San Juan VA Medical Center. Since these potential additional records have not been obtained, and are pertinent to the claim, it is necessary for VA to attempt to obtain them for consideration in this appeal. See Bell, 2 Vet. App. 611; see also 8 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(2), (c)(3) (2008). The RO should attempt to obtain these records and, if they do not exist, must make an express declaration confirming that further attempts to obtain them would be futile. The veteran should also be apprised of the latter situation, should it arise. Accordingly, this case is REMANDED for the following development and consideration: 1. Send the veteran another VCAA notice letter to advise him of the three requirements for establishing his entitlement to service connection for PTSD, in particular, insofar as a medical diagnosis of this condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); credible supporting evidence that his claimed in-service stressors actually occurred; and a link, established by medical evidence, between his current symptoms of PTSD and an in-service stressor. 2. Ask the veteran to assist in the search for his VA treatment records by specifying dates, locations, and providers of treatments at VA facilities. After allowing an appropriate time for response, contact the Ponce Outpatient Clinic and its parent facility, the San Juan, Puerto Rico VA Medical Center, to obtain all of the veteran's relevant psychiatric treatment records, especially any outstanding records not already associated with the claims file. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the veteran notified in accordance with 38 C.F.R. § 3.159(c)(2). 3. Review the file, including this remand, and prepare a summary of the veteran's alleged in-service stressors. Request the veteran to confirm the summary of his alleged combat stressors, and add any other details he can provide. So far, his alleged combat stressors include the following information: (a) On March 19, 1953, he was sent to the line of combat, while in Company K or 19, Ninth Infantry Regiment APO 248. The insignia of this unit was the Indian. They assigned him to Papasan Hill in Korea, a mountain where the lines were in combat. (b) Some of his friends were killed in that area of Korea in May 1993. His best friend, Luis Gerena from Naranjito, Puerto Rico, was killed by mortar shellfire one night in an unexpected attack from the enemy. 30-40 others were also killed that night. During this time, he was in Company K or 19, Ninth Infantry Regiment APO 248. While the enemy attacked with artillery, he stayed in his hole in the ground. He observed anybody who got out of the hole was wounded or killed by artillery fire. (c) On another occasion, a Korean soldier came with his hands up. He saw a fellow soldier kill the enemy solider, and take the dead man's watch as a souvenir. 4. Schedule him for a VA psychiatric evaluation for a medical nexus opinion indicating whether it is at least as likely as not (i.e., 50 percent or more probable) that he has PTSD as a result of his asserted stressors from combat in the Korean War. He is hereby advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on his claim. The examination should include any necessary diagnostic testing or evaluation, including PTSD sub scales. The claims folder, including a complete copy of this remand, must be provided to and reviewed by the examiner for the veteran's pertinent medical and other history. The term "at least as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 5. Then readjudicate the claim in light of the additional evidence. If the claim is not granted to the veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. 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 2002 and Supp. 2007). _________________________________________________ D. M. Ames Acting 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) (2008).