Citation Nr: 0813473 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-11 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from May 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran seeks service connection for PTSD. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the veteran's lay statements alone may establish occurrence of the claimed in-service stressor, in the absence of clear and convincing evidence to the contrary, as long as the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); see 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 the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor and his testimony must be corroborated by credible supporting evidence. See Zarycki, 6 Vet. App. at 98; Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). The occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). In the present case, the evidence does include a diagnosis of PTSD conforming to DSM-IV. The diagnosis is demonstrated in an October 2003 Vet Center record. The Vet Center examiner associated the veteran's PTSD with the veteran's reported stressors of his ship hitting a reef and "tearing 45 frames," the stabbing of a friend in a ship fight, hearing aircraft overhead and fearing that they would explode if hit, and seeing children coming from the front lines with missing limbs. Thus, the first element of establishing service connection for PTSD has been satisfied. The Board must consider whether an in-service stressor has been demonstrated. Again, 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. The evidence of record does not support the conclusion that the veteran engaged in combat with the enemy. Indeed, the veteran's DD-214 does not reveal any awards or decorations indicative of combat. Moreover, the veteran's duty assignment, as a plumber, does not establish combat. It is acknowledged that "conclusive evidence" of combat participation may also be established by "other supportive evidence" that the claimant was in a plane crash, ship sinking, explosion, rape or assault, or duty on a burn ward or in a graves registration unit. See Zarycki, supra. The Board finds the term "other supportive evidence" is unclear as to the limitations, if any, on what can constitute "other supportive evidence." At a minimum, however, the case law from the Court would preclude the use of the claimant's own assertions as "other supporting evidence," nor would post- service medical evidence suffice as "other supporting evidence." To the extent that the term "other supporting evidence" in this context could consist of service department records, the Board finds that there are no service department medical or administrative records to establish that the claimant was in a plane crash, ship sinking, explosion, rape or assault, or had duty on a burn ward or in a graves registration unit. Thus, the Board finds that the record does not contain "conclusive evidence" that the veteran "engaged in combat with the enemy." The Board notes that the veteran participated in Operation Double Eagle aboard the U.S.S. Elkhorn in January and February 1966; however, the deck logs from that period do not reveal that the veteran was exposed to any small arms fire or engaged in combat at that time. As noted previously, where the record, as here, fails to establish that the veteran engaged in combat with the enemy, the veteran's lay statements as to in-service stressors cannot be accepted without further corroboration through independent evidence. Doran, 6 Vet. App. at 288-89. In the present case, the veteran has reported numerous in- service stressors. These include, his ship, the U.S.S. Tombigbee, running aground at Bikini Atoll in 1963 and "tearing 45 frames," the stabbing of a friend in a ship fight, observing shootings and stabbings while the ship was docked at DaNang, hearing aircraft overhead and fearing that they would explode if hit, seeing children coming from the front lines with missing limbs, and being the target of small arms fire while unloading fuel during Operation Double Eagle. In regard to the veteran's reported in-service stressors of seeing a friend stabbed during an onboard fight, observing shootings and stabbings while the ship was docked at DaNang, hearing aircraft overhead and fearing that they would explode if hit, and seeing children coming from the front lines with missing limbs, he does not provide a date for the incidents, and does not name any eyewitnesses or individuals with knowledge of the described incidents. Generalized or unspecific descriptions of stress do not lend themselves to meaningful verification efforts. In regard to the veteran's reported in-service stressors of the U.S.S. Tombigbee running aground at Bikini Atoll in 1963 and tearing "45 frames" and coming under small arms fire while unloading fuel during Operation Double Eagle, the RO has attempted to independently verify these specific events. The RO reviewed the ships history of the U.S.S. Tombigbee at the Navy Historical Center Website. The history of the U.S.S. Tombigbee does not reveal that the ship ran aground or suffered any damage in 1963. The RO reviewed the history of the U.S.S. Elkhorn. The record revealed that the U.S.S. Elkhorn was involved in Operation Double Eagle. However, a review of the monthly summaries of the U.S. Naval Forces in Vietnam did not reveal that the U.S.S. Elkhorn ever came under fire. The RO submitted the veteran's stressors to the U. S. Army and Joint Services Records Research Center (JSRRC) (formerly Center for Unit Records Research (CURR)) in an attempt to verify the claimed stressors. JSRRC was unable to verify that the U.S.S. Elkhorn ever came under fire. There is no indication in the claims folder that JSRRC attempted to verify the veteran's reports of the U.S.S. Tombigbee running aground at Bikini Atoll in 1963. In a statement dated in January 2007, a shipmate of the veteran from the U.S.S. Tombigbee reported that the ship ran aground in 1963 at Bikini Atoll. The RO should make another attempt to verify whether the U.S.S. Tombigbee ran aground at Bikini Atoll in 1963. To this, VA has a duty to provide a summary of his stressor statements to the U.S. Army and Joint Services Records Research Center (JSRRC), and ask them to attempt to verify the stressor. 38 U.S.C.A. § 5103A(b) (West 2002). Therefore, on remand, the veteran's supplied stressor information should be discussed in a report and again forwarded to the JSRRC. The Board acknowledges that, to date, VA has neither afforded the veteran an examination nor solicited a medical opinion as to the nature, extent, onset and etiology of his diagnosed PTSD. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is competent medical evidence from a Vet Center examination that the veteran has a current diagnosis of PTSD. There is evidence that the veteran suffered a traumatic event while in service, namely the statement of the veteran's shipmate confirming that the U.S.S. Tombigbee ran aground at Bikini Atoll in 1963. There is an indication that the veteran's current diagnosis of PTSD may be associated with his service provided by the Vet Center examination. However, no medical opinion has been rendered regarding the etiology of the veteran's PTSD based upon confirmed stressors. Accordingly the claim must be remanded for a VA C&P psychiatric examination to obtain an opinion on the etiology of the veteran's PTSD based upon confirmed stressors. Accordingly, the case is REMANDED for the following action: 1. Forward copies of the veteran's stressor statement, together with his DA Form 20, DD 214, and unit designations to the U. S. Army and Joint Services Records Research Center (JSRRC) (formerly Center for Unit Records Research (CURR)) in an attempt to verify the claimed stressors. 2. If, and only if, at least one of the claimed stressors is independently verified by the JSRRC or otherwise, the veteran should be afforded a VA psychiatric examination by a physician with appropriate expertise to determine the nature and etiology of any diagnosed PTSD. All indicated studies, tests and evaluations deemed necessary should be performed, including psychological testing designed to ascertain whether the veteran has PTSD due to an independently verifiable in-service stressor. The examiner should be informed of any stressor which has been independently verified. A diagnosis of PTSD under DSM IV criteria should be made or definitively ruled out. If PTSD is diagnosed, the examiner must identify the independently verifiable in-service stressor(s) supporting the diagnosis. If PTSD is diagnosed, supported by an in- service stressor(s), the examiner must provide an opinion concerning the degree of social and industrial impairment resulting from the veteran's PTSD, to include whether PTSD alone renders the veteran unemployable, and a global assessment of functioning score with an explanation of the significance of the score assigned. If PTSD is not diagnosed, the examiner should explain why the diagnosis was not made. The claims folder, including a copy of this REMAND, must be made available to and reviewed by the examiner. 3. Thereafter, readjudicate the veteran's claim of service connection for PTSD. If the benefits sought on appeal are not granted, the RO should issue the veteran and his representative a supplemental statement of the case and provide the veteran an opportunity to respond. The appellant 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ D. C. SPICKLER 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) (2007).