Citation Nr: 0420670 Decision Date: 07/29/04 Archive Date: 08/05/04 DOCKET NO. 03-02 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The veteran served on active duty from August 1961 to August 1964. This case comes to the Board of Veterans' Appeals (the Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. No further action will be taken with regard to the veteran's request for a hearing before the Board. He did not appear for his hearing scheduled on June 23, 2004, and no explanation for his failure to report or a request to schedule a new hearing has been submitted in connection with this appeal. The appeal is 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 Notwithstanding the efforts undertaken by the RO to prepare this case for appellate review, the Board finds that a remand is in order. The veteran asserts that he has PTSD due to witnessing and/or experiencing stressors of a non-combat origin (saw a fellow servicemember get shot and killed by German police during a bar fight in 1962 in or near Kaiserslautern, Germany, and witnessed another servicemember getting run over by an Army truck in 1963 in Caldrew, Germany). He also claims he was arrested and roughed up by German police in the bar fight incident. His service personnel and medical records indicate that he was stationed in Germany in 1962 and 1963. The record shows that the RO did not forward this case to U. S. Center for Research of Unit Records (USASCRUR) in an attempt to verify any of the veteran's stressors based on the information he provided. It appears that his stressor accounts remain somewhat vague factually, as he has not specified the exact dates for the events he cited. However, he did name an individual shot by German police, a Specialist-4 Allison, and he identified a Specialist-4 Bailey as the person who was run over by the truck. In order to comply with applicable regulation and manual provisions, as well as the precedent decisions of the U. S. Court of Appeals for Veterans Claims, the Board believes that additional development is required, to include stressor-verification development and the scheduling of the veteran for a VA examination to determine whether he has a DSM-IV diagnosis of PTSD based on his reported stressors and a complete review of all the evidence in the claims file. The appellate record does not at this time contain sufficient medical evidence to decide this claim. See 38 U.S.C.A. § 5103A(d)(1) and (2) (West 2002). The Board notes as well that 38 C.F.R. § 3.304(f) was amended in March 2002 during the pendency of this appeal. See 67 Fed. Reg. 10332 (Mar. 7, 2002). This regulation is specifically germane to the development and adjudication of this claim as the revision involves the standard of proof and the type of evidence necessary to substantiate a claim of service connection for PTSD based on non-combat/personal assault-type stressors. It also specifically provides that VA will not deny this type of PTSD claim without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(3) (2002). The record shows that the RO sent the veteran a PTSD-stressor development letter, but this letter predated the revised section 3.304(f)(3), and it did not specifically advise him in the manner described by this new regulation. Given the other deficiencies described above with regard to the evidentiary development of this case, the Board finds that full and complete compliance with the amended section 3.304(f)(3) is required. The Board also notes that precedent holdings of the Court provide specific guidance for the adjudication of PTSD claims based on non-combat stressors, at issue in this case. See 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 it did not discuss the special evidentiary procedures for the development of PTSD claims based on non-combat stressors as established by VA guidelines. Patton, 12 Vet. App. 272 (1999). Where, as in this case, the claimant did not serve in combat and the claimed stressor is not related to combat, lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Id. citing West (Carelton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In these types of cases, special development procedures for non-combat stressors are required pursuant to the M21-1 in order to provide the veteran-claimant every opportunity to verify the occurrence of the claimed stressor. See M21-1, Part III, Section 5.14 (Mar. 2002). In light of the Court's precedent holdings, the Board finds it necessary to address the matter of whether there is sufficient corroboration of the veteran's stressors, in particular, the incident connected to the alleged bar fight and arrest/intimidation by German police, upon completion of the special development procedures under M21-1, Part III, Sec. 5.14, and upon completion thereof, further medical development to determine whether any "markers" or "behavioral changes" that occurred at or close in time to the alleged incident could possibly indicate the occurrence of a claimed stressor, as described in detail in the M21-1. The Board is of course aware that the veteran has been less than precise in describing details of his alleged stressors; however, VA procedural due process requirements as well as by the regulation changes and Court decisions dealing with PTSD- noncombat/assault cases sets forth specific and unambiguous development standards that must be met before the Board issues a final decision on the merits. Accordingly, this case is REMANDED to the Veterans Benefits Administration (VBA) for the following: 1. The VBA should contact the veteran and inform him that he may submit any corroborating lay and/or additional medical evidence he may have pertaining to treatment for PTSD symptoms. The VBA should assist the veteran in obtaining such evidence, as appropriate. 2. In addition, the VBA should contact the veteran and inform him that he may submit any other corroborating evidence he may have pertaining to the alleged bar fight incident and all its particulars and well as the Army truck death of a servicemember, which he claims to have experienced during service. The VBA should inform him that he may submit any other evidence to verify his alleged stressors from military as well as nonmilitary sources. The VBA should assist the veteran in obtaining such evidence, as appropriate. In connection with this development, the VBA should ensure that all appropriate special development procedures mandated by M21-1, Section 5.14 and 38 C.F.R. § 3.304(f)(3) for verification of a non-combat stressor are fully accomplished and documented in the claims folder, to include issuance of the special development letter to the veteran advising him of the steps necessary to verify his non-combat stressors. Moreover, to the extent possible based on the information the veteran has provided, the VBA should pursue appropriate verification efforts through the USASCRUR or other military source in an attempt to verify whether the servicemembers the veteran named were killed in the bar fight and Army truck accident incidents, as described above. 3. Following the above, the VBA must make a specific factual determination, based upon the complete record, with respect to whether one or more of the veteran's stressors occurred as he claims. In rendering this determination, the attention of the VBA is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14 corroborate the veteran's allegations, the RO should specify that information. The VBA should also indicate whether any behavioral changes that occurred at or close in time to the alleged incidents could possibly indicate the occurrence of a stressor and if so should decide whether this evidence needs interpretation by a clinician. 4. Upon completion of the above, the VBA should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. A psychiatrist who has not previously examined, evaluated or treated the veteran, if feasible, should conduct this examination. 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 the alleged stressor found to be established by the record was sufficient to produce PTSD; and, (2) whether there is a link between the current PTSD-symptomatology and the in-service stressor 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 bar fight and arrest incident could possibly indicate the occurrence of an alleged in-service stressor. 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. 5. The veteran 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. 6. After completion of the above, the VBA should readjudicate the claim with consideration given to all of the evidence of record. Further, the readjudication of the claim must be in accord with the revised 38 C.F.R. § 3.304(f), as amended in June 1999 and March 2002, which include the appropriate notice procedures set forth under the revised section § 3.304(f)(3) discussed above in this REMAND. If any benefits sought on appeal remain denied, the VBA should provide the veteran and his representative an adequate supplemental statement of the case. The VBA should then allow the veteran an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has the right to submit additional evidence and argument on the matter or matters 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2003).