Citation Nr: 0024717 Decision Date: 09/15/00 Archive Date: 09/21/00 DOCKET NO. 97-07 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from August 1968 to September 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1996 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a hearing held before the undersigned Member of the Board on September 2, 1998. A transcript of this hearing has been associated with the record on appeal. The Board remanded this case in December 1998, and upon completion of the development requested on remand, the RO returned the case to the Board in July 2000 for further appellate review. FINDING OF FACT The appellant's claim of service connection for PTSD is plausible. CONCLUSION OF LAW The appellant has presented a well-grounded claim of service connection for PTSD, but VA has not satisfied its duty to assist him in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION In December 1998, the Board determined that new and material evidence had been submitted to reopen the appellant's claim of service connection for PTSD, and remanded for further development. While the claim was pending below at the RO, the United States Court of Appeals for Veterans Claims (the Court) articulated a three-step analysis for adjudicating claims based on new and material evidence: VA must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening VA must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, VA may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc). Accordingly, as this case remains in appellate status, the Board will now consider whether the claim is well grounded in line with the Court's Elkins- analysis. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (precedent decisions of Court are given retroactive effect with regard to cases in which the administrative or judicial review process is not concluded). Upon review of the evidence, the Board concludes that the claim is well grounded under 38 U.S.C.A. § 5107(a) (West 1991). This conclusion is supported by several diagnoses of PTSD and by implied findings of a relationship between the diagnosis and events the appellant claims to have experienced during his military service in the Air Force from August 1968 to September 1971. See Gaines v. West, 11 Vet. App. 353 (1998) (claim for PTSD well grounded where the veteran submits (1) medical evidence of a current disability; (2) lay evidence (presumed to be credible) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and (3) medical evidence of a nexus between service and the current PTSD disability). Accordingly, as the appellant's reopened claim of service connection for PTSD is well grounded within the analytical framework of Elkins, further development, as set forth below in the REMAND section of this decision, is in order. The Board acknowledges that with the well-grounded analysis, it has addressed an element of the claim that was not addressed by the RO and therefore, it must be considered whether the appellant has been given adequate notice and opportunity to respond and, if not, whether he will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, the Board concludes that the appellant has not been prejudiced by the decision herein. The Board has considered the same law and regulations, and in finding the claim well grounded, has resolved in the appellant's favor an issue that serves as a "gatekeeping" function in the claims process. Cf. Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). Moreover, by finding the claim well grounded, any further challenge on this issue at the Department-level is waived, which hereafter accords the appellant the benefit of the duty to assist under 38 U.S.C.A. § 5107(a) (West 1991). See Nolen v. Gober, No. 99-7173 (Fed. Cir. Aug. 1, 2000). ORDER To the extent of the finding that evidence is sufficient to well ground the appellant's claim for service connection for PTSD, the appeal is granted. REMAND Because the appellant has submitted a well-grounded claim for service connection for PTSD, the duty to assist attaches. 38 U.S.C.A. § 5107(a). The regulation governing the award of service connection for PTSD, 38 C.F.R. § 3.304(f), was amended during the pendency of this appeal. 64 Fed. Reg. 32807 (June 18, 1999). The new version of the regulation is effective from March 7, 1997, and hence, as this claim was still pending on that date, the revised version must be considered. Karnas, 1 Vet. App. 308, 313 (1991). One of the changes to section 3.304(f) stipulates that an award of service connection for PTSD depends on whether there is medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which the Board observes is a reference to a diagnosis made on the criteria set forth in the DSM-IV. In lieu of the fact that additional stressor-verification development will be required, as set forth below, the Board believes that the RO should have the appellant examined by VA in order to determine whether he has a DSM-IV diagnosis of PTSD based on his reported stressors. The Board notes that precedent holdings of the Court issued during the pendency of this appeal provide additional guidance for the adjudication of claims for service connection for PTSD, particularly, with respect to non-combat stressors, at issue in this case. See e.g. Patton v. West, 12 Vet. App. 272 (1999) (verification of non-combat stressors); Suozzi v. Brown, 10 Vet. App. 307 (1997) (sufficiency of information to verify stressors); Cohen v. Brown, 10 Vet. App. 128 (1997) and Moreau v. Brown, 9 Vet. App. 389 (1996). In the Patton case, the Court found error in the Board's decision because the Board did not discuss the special evidentiary procedures for PTSD claims based on non-combat stressors. With regard to combat service/stressor verification, the record does not reflect that the appellant received any awards or decorations for valor, combat experience or combat injuries, nor is there any other evidence of record that the appellant engaged in combat with the enemy. Where a veteran-claimant did not serve in combat or the stressor is not related to combat, his lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. See West (Carelton) v. Brown, 7 Vet. App. 70, 76 (1994); see also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Instead, the record must contain evidence which corroborates his testimony as to the occurrence of the claimed stressor, and special development procedures are required pursuant to the M21-1. 38 C.F.R. § 3.304(d), (f); VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, Section 5.14(c) (Feb. 20, 1996). Although the appellant has provided rather vague stressor accounts which are mainly non-combat based (witnessing deaths of Vietnamese civilians and inhumane treatment in the form of physical and racially-based verbal abuse from non- commissioned officers (NCO's) that he claims put him in fear for his life, to include putting snakes in his locker, bed and shoes after they found out he was afraid of snakes, making him walk back to base all alone in the dark, pointing a gun at him, etc.), there is evidence from service showing treatment for psychiatric-based complaints and accounts by medical history of depression and/or excessive worry which, in light of the Court's precedent holdings cited above, makes it necessary to address the matter of whether there is sufficient corroboration of the appellant's stressors upon completion of the special development procedures under M21-1, Part III, Sec. 5.14(c) for non-combat stressors, and upon completion thereof, further medical development to determine whether any "behavioral changes" that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in- service stressors, as described in detail in the M21-1. With respect to the issue of stressor-verification, it is noted that in Suozzi, the Court expressly held that a veteran need not prove "every detail" of an alleged stressor. Id. at 311. In Moreau, the Court stated that credible supporting evidence of a stressor may be obtained from service records or "other sources." Id. at 395. Accordingly, this case is REMANDED to the RO for the following development: 1. The RO should contact the appellant and inform him that may submit any additional corroborating evidence he may have pertaining to alleged stressors experienced during his military service from August 1968 to September 1971. The appellant should be advised that a meaningful research of his stressors will require him to provide the "who, what, where and when" of each stressor. Further, the RO should inform the appellant that he may submit any other evidence to verify his alleged stressors from military as well as nonmilitary sources. The RO should assist the appellant in obtaining such evidence, as appropriate. In connection with this development, the RO should ensure that all appropriate special development procedures mandated by M21-1, Section 5.14(c) for verification of non-combat stressors is fully accomplished and documented in the claims folder, to include issuance of the special development letter to the appellant advising him of the steps necessary to verify his non-combat stressors. If deemed necessary based on the information provided by the appellant, the RO should request verification of his stressors with the U. S. Armed Services Center for Research of Unit Records (USASCRUR). USASCRUR should attempt to verify any detailed stressor information provided by the appellant. All documents, correspondence, reports or statements obtained or generated as a result of these inquiries should thereafter be associated with the claims folder. 2. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the veteran was exposed to a stressor or stressors in service, and if so, what was the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the veteran's allegations of stressors occurring, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors and if so should decide whether this evidence needs the interpretation by a clinician. See M21- 1, PartIII, 5.14c (9). If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor or stressors in service it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 3. If the RO finds that the veteran has a verified stressor, it should schedule the appellant for a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. This examination, if feasible, should be conducted by a psychiatrist who has not previously examined, evaluated or treated the appellant. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record and found sufficient to produce PTSD by the examiner. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 4. The appellant must be given adequate notice of any requested examination, which includes advising him of the consequences of failure to report for a scheduled examination. If he fails to report for an examination, this fact should be documented in the claims folder. A copy of all notifications must be associated with the claims folder. 5. Subsequently, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. Specific attention is directed to the examination reports to ensure that they are in compliance with the directives of this REMAND. 6. After completion of the above, the RO should readjudicate the issue on appeal (service connection for PTSD), with consideration given to all of the evidence of record, including any additional medical evidence obtained by the RO pursuant to this REMAND. The readjudication of the PTSD claim must be on a de novo basis as the claim has been found well grounded. Further, the readjudication of this claim must be in accord with the revised version of 38 C.F.R. § 3.304(f), as amended effective from March 1997. The RO should also carefully consider the benefit of the doubt rule within the analytical framework provided by applicable caselaw for PTSD claims, such as in the Patton, Suozzi, Cohen and Moreau decisions. In this regard, if the evidence is not in equipoise the RO should explain why. Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 7. The appellant is hereby informed that he should assist the RO, to the extent possible, in the development of his claim, and that failure to cooperate or to report for any scheduled examination may result in an adverse decision. Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). Thereafter, the case should be returned to the Board, if in order. The appellant need take no action until otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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. THOMAS J. DANNAHER Member, Board of Veterans' Appeals