Citation Nr: 0120212 Decision Date: 08/07/01 Archive Date: 08/14/01 DOCKET NO. 99-22 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD) and dysthymic disorder also claimed as depression secondary to PTSD. REPRESENTATION Appellant represented by: Colorado Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from September 1969 to September 1971. He served in Vietnam. The current appeal arose from a January 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The RO denied entitlement to service connection for PTSD, and dysthymic disorder claimed as depression secondary to PTSD. The veteran and his wife provided oral testimony via a video conference hearing at the RO before the undersigned Member of the Board in June 2001, a transcript of which has been associated with the claims file is on file. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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. 2001) (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. 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 Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000), which held that VA cannot assist in the development of a claim that is not well grounded. This change 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. VCAA 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). A review of the claims file discloses that in correspondence to the veteran in April and May 2001 the RO advised the veteran of the new law and what evidence was necessary and procedures be taken to substantiate his claims. The detailed correspondence delineated all actions taken by the RO to develop the veteran's claims, and what he could do to aid in their processing of his claims. While no additional documentation was associated with the claims file, the veteran and his wife did provide oral testimony in June 2001 via a previously requested videoconference at the RO before the undersigned Member as noted above. The veteran served on active duty from September 1969 to September 1971. He served in Vietnam from October 10, 1970 to September 17, 1971. His awards and decorations include the Vietnam Service Medal, Gallantry Cross with palm, and a Vietnam Commendation Medal with two service bars. His military occupational specialty was in the field of artillery. He was assigned to an artillery unit. A July 1998 statement from a VA staff psychiatrist and a clinical social worker shows that after the veteran completed basic training he was transferred to truck driving school. He was then transferred to the artillery. Thereafter, he was assigned to a headquarters battery where he worked as a truck driver transporting ammunition. He was then transferred to a firing battery and then to the forward directional center. He served one tour of duty in Vietnam. In late November and December 1970, he was assigned to the artillery and attached the 1st and 10th Cavalry. He was near An Khe where he was in charge of clearing targets before artillery strikes for the entire section. It was noted that on one occasion an Air Force major called in saying there were two Vietcong in the opening. The major requested that artillery be sent in and that he would personally direct the fire. The veteran told his lieutenant that he wanted to visually clear the area. The lieutenant denied the request. The veteran reluctantly cleared the area without any further information and allowed the artillery to be sent in, between 30 and 60 rounds. It was later discovered that instead of two Vietcong there were an old man and his grandson. It was noted that the veteran had tried to stop the actions before they occurred and spoke of guilty feelings in not being able to stop the artillery. Although he never saw the bodies he was told by witnesses that they were severely mutilated by the artillery. It was noted that in February or March 1971 the veteran was at a fire base just outside of An Khe. The enlisted men got into a argument as to whether the Cavalry could outshoot the Infantry. The two outfits used an old French tank outside the fire base as a target to determine which group hit it first. The sergeant was lining up the barrel while the rest of the troops were drunk. One of the soldiers fired the artillery piece and the sergeant was hit and had his head "bashed" in. He was covered in blood. He died on arrival to the medical unit. Also, on the An Tuc pass around the same time there was a convoy going over the pass that called in for support. It was out of their area and they were unable to shoot artillery because they were on the other side of the mountain. There was a significant conflict between the Koreans and US soldiers about who should be providing the fire. They were forced to listen to the cries for help over the radio without being able to provide assistance. The situation intensified the veteran's feelings of helplessness and inability to help his comrades. In June or July 1971 at Hill 519, the 82nd Airborne requested clearance to sight in a mortar. They wanted to shoot some targets. The mortar had just been recalibrated. The veteran reported back to them that friendlies were not in the area. They were to back the mortar 500 to 1000 meters and walk it in. The first round shot hit the foxhole of a friendly outpost, because the person firing did not back it off. It was noted that two outposts of six men each had been originally established and before the night was over all the soldiers had killed due to friendly fire. It was noted that a sergeant going out on relief stepped on a claymore mine and was killed. Other troops in the area heard the explosion and thought they were under attack. They also stepped on claymores and were killed. The veteran was noted to have witnessed significant problems with "friendly fire." He was discharged from the Army in September 1971. The reported diagnosis was PTSD. A subsequently dated July 1998 VA psychological evaluation report recounted the traumatic events by the veteran in the paragraph above. Following a mental status evaluation the examining psychologist found no psychiatric disability. In August 1998 the veteran submitted a statement in support of his claim of service connection for PTSD with attachments. An August 1998 VA psychiatric examination by a board of two psychiatrists shows the veteran reported only one example of a stressful situation. He recalled a major overruling the veteran's request not to fire artillery shells into an area where peasants were gathering. The examination summary showed that the board of two found insufficient evidence to make a diagnosis of PTSD. A diagnosis of dysthymic disorder was indicated as was a personality disorder. VA outpatient mental health treatment records in 1998, 1999 and 2000 refer to individual therapy sessions for diagnosed PTSD. An August 1999 follow-up statement from the VA psychiatrist and clinical social worker affirmed the earlier diagnosis made in July 1998. A January 2001 VA PTSD screening evaluation confirmed the diagnosis of PTSD. It was noted that the veteran had experienced prolonged exposure to unusually stressful events while serving at a fire direction center in Vietnam from 1970 to 1971. He described the shelling of an old man and a child, seeing the disfigured corpse of a US sergeant and clearing a target area with a bunker containing the body of a soldier killed by artillery fire. The Board notes that the Court, in Zarycki v. Brown, 6 Vet. App. 91 (1993), set forth an analytical framework for establishing the presence of a recognizable service stressor, which is an essential prerequisite to support a diagnosis of PTSD. This analysis has been expanded upon by the Court in subsequent decisions, such as West v. Brown, 7 Vet. App. 70 (1994), Moreau v. Brown, 9 Vet. App. 389 (1996), Cohen v. Brown, 10 Vet. App. 128 (1997); and Gaines v. West, 11 Vet. App. 353 (1998). The case was forwarded to the Board without the completion of all necessary development to verify the veteran's claimed stressors supporting the diagnosis of PTSD. Accordingly, the RO should make all necessary arrangements to verify the stressors supporting the diagnosis of PTSD. The record shows that the veteran was awarded disability benefits by the Social Security Administration (SSA). The favorable decision in this regard shows that the disorders accounting for the favorable grant of benefits included depressive syndrome, and recurrent and intrusive recollections of a traumatic experience which were productive of marked distress, in other words, PTSD. However, the complete medical records relied upon by the SSA to award benefits have not been associated with the claims file. The duty to assist extends to obtaining records of the SSA. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181, Therefore, pursuant to VA's duty to assist the veteran in the development of facts pertinent to his claims under the VCAA of 2000, Pub. L. No. 106-475 the Board is deferring adjudication of the issues of entitlement to service connection for PTSD and dysthymic disorder also claimed as depression secondary to PTSD pending a remand of the case to the RO for further development as follows; 1. The RO should contact the National Personnel Records Center and/or any other appropriate service department for the purpose of obtaining any additional outstanding service medical records as well as service personnel and administrative records. 2. The veteran 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). In this regard, the RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who may possess additional records referable to treatment of his psychiatric symptomatology no matter how diagnosed to include PTSD and dysthymic disorder. After securing any necessary authorization or medical releases, the RO should obtain and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports. The RO should obtain from the SSA the records pertinent to the veteran's claim as well as the records relied upon concerning that claim. All information which is not duplicative of evidence already received should be associated with the claims file. 3. If the RO is unable to obtain any of the relevant records sought, it shall notify the veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C.A. § 5103A(b)(2) (West Supp. 2001) . 4. The RO should afford the veteran the opportunity to provide specific details of his alleged in-service stressful incidents, including the date(s), place(s), unit of assignment at the time of the event(s), description of the event(s), and, if appropriate names and other identifying information concerning any other individuals involved in the event(s). At a minimum, the veteran must be asked to indicate the location and approximate time of the stressful event(s) in question. He should be informed that this information is necessary to obtain supportive evidence of the stressful event(s), and that failure to respond or an incomplete response may result in the denial of his claim. See M21-1, Part III, para. 5.21(b). 5. Thereafter, the RO should review the entire claims file to include the June 2001 Video conference hearing transcript, statements of stressors and PTSD Questionnaire submitted by the veteran and prepare a summary of the unverified claimed stressors based on review of all pertinent documents and all medical records. 6. The summary and all associated documents, such as the veteran's DD-214, acquired personnel records, other service records, and any written stressor statements should then be sent to the U.S. Armed Forces Service Center for Research of Unit Records (USASCRUR) to obtain verification of the claimed stressors. USASCRUR should be requested to provide any information, which might corroborate any of the veteran's claimed alleged combat experience and stressors. 7. Following the above, the RO should arrange for a VA special psychiatric examination of the veteran. The RO is to stress to the veteran the seriousness of the scheduled examination, the importance of a definite psychiatric diagnosis, and the obligation of reporting to the examination at the proper time. The claims file, a separate copy of this remand, the stressor list compiled by the RO, and any information provided by the USASCRUR must be provided to the examiner for review prior and pursuant to conduction and completion of the examination. The examiner must annotate the examination report that the claims file and associated documentation was in fact made available for review in conjunction with the examination. Any further indicated special studies, including psychological studies, should be accomplished. Prior to the examination, the RO is to inform the examiner of the results of its determination as to the existence of a stressor or stressors. The examiner should conduct the examination with consideration of the current criteria for PTSD. With respect to PTSD, the RO must specify for the examiner the stressor or stressors that it has determined is/are established by the record and the examiner must be instructed that only those events may be considered for the purpose of determining whether the appellant was exposed to a stressor(s) in service. If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record by the RO was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) 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 by the RO and found to be sufficient to produce PTSD by the examiner. The examiner must assign a Global Assessment of Functioning (GAF) Scale which is consistent with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders and explain what the assigned score means. The examiner should also be requested to determine whether clarification of the veteran's diagnosis(es), if any, would be assisted by a period of hospitalization for observation and examination. If determined appropriate by the examiner, such hospitalization for examination and observation should be scheduled and conducted. The report of hospitalization should include the complete history of treatment and observation, including copies of all clinical records, nurse notes, and therapy records, prepared during the hospitalization. If the examiner determines that a period of hospitalization is not required, the examiner should so state. During the admission, any necessary special studies or tests, to include psychological testing and evaluation should be accomplished. Alternatively, if PTSD is not found on examination (including during any necessary hospitalization), the examiner must delineate all diagnoses reached to account for the veteran's psychiatric symptomatology. The examiner must also express an opinion as to whether any psychiatric disorder(s) found on examination is/are related to service on the basis of direct service incurrence, or if pre-existing service, was/were aggravated by the veteran's period of service, particularly with respect to alleged traumatic experiences. The report of examination should include the rationale for all opinions expressed. Any opinions expressed by the examiner must be accompanied by a complete rationale. 8. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report(s) and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should implement corrective procedures. The RO is advised that 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, and further remand will be mandated. Stegall v. West, 11 Vet. App 268 (1998) The RO must also review the claims file to ensure that all new notification and development action under the new law are fully complied with and satisfied. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107) (West Supp. 2001). 9. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issues of entitlement to service connection for PTSD, and dysthymic disorder also claimed as depression secondary to PTSD. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case (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. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until he is notified by the RO; however, the veteran is advised that failure to report for a scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claims. 38 C.F.R. § 3.655 (2000). RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a decision of the Board is appealable to the Court. 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).