Citation Nr: 0814104 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 94-20 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran had active service from August 1969 to July 1971. The appeal comes before the Board of Veterans' Appeals (Board) from a November 1993 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a personal hearing at the RO in May 1995. The Board remanded the case in April 1996, May 1997, May 1999, and December 2004, in attempts variously to verify reported stressors and obtain evidence to support the claim. The Board in an April 2007 decision denied the claim. However, the veteran appealed that decision, and the United States Court of Appeals for Veterans Claims (Court) by a December 2007 Order approved the Secretary's motion to vacate the April 2007 Board decision, and to remand the case to comply with Court precedent regarding recognition of stressors and development of PTSD service connection claims. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND Under the applicable regulation, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that 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 that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2007). VA treatment records, including particularly those in 1993, include treatment for several psychiatric difficulties, with diagnoses of organic mood disorder, PTSD, and history of alcohol dependence. Upon remand examination, the examiner must address the etiology of any current psychiatric disorder as potentially related to service. With regard to claimed PTSD, the remaining questions are whether a confirmed in- service stressor may be presumed based upon exposure to or involvement in combat, or may be established by the evidence, which may be medically found to be causative of the veteran's PTSD. The veteran's DD Form 214 does not indicate any foreign service, but his personnel records show that he served in Vietnam from February 21, 1970, to February 20, 1971. His military occupational specialty was equipment storage specialist. He received the National Defense Service Medal, the Vietnam Service Medal, and an Army Commendation Medal for meritorious achievement. There is no indication that he received any combat badges or that he sustained any combat wounds. The veteran has submitted numerous statements concerning his alleged in-service stressors, to include his RO hearing testimony. He stated that he had functioned as a guard, a driver, and member of a depot inspection team. He reported being stationed at the Qui Nhon and Long My military installations. He reported that he was subjected to sniper and sapper fire and periodic mortar attacks, and had witnessed the traumatic deaths of American soldiers. He said that while at Long My he was guarding the ammunition depot one night when two Viet Cong sappers attempted to penetrate the wire perimeter. He said he shot them, and was there the following morning when their mutilated bodies were recovered. He also reported a "fragging" (an attack on an individual by a fellow soldier) incident at the Long My barracks, in which a black sergeant, known as "Action" Jackson, was either killed or injured by a white soldier (he stated that he did not know the extent of the injuries, only that the victim was medically evacuated). He said that he was assigned as a guard to escort the perpetrator to the Long Binh jail. He indicated that these incidents had resulted in his PTSD symptoms of flashbacks, nightmares, intrusive recollections, self-isolation, lack of trust, and guilt. The RO attempted to verify these incidents. Regarding the incident in which two Viet Cong sappers were killed, the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly the U.S. Armed Services Center for Unit Records Research) conducted as thorough a search as was possible with the information provided. While the U.S. Army Support Command at Qui Nhon showed that the Long My installation had sustained four incidents of sniper fire during the applicable time period, there was no documentation that two Viet Cong soldiers had been killed on the perimeter. The Operational Reports - Lessons Learned stated that contact with the enemy for the command as a whole was "light." Sniper fire had occurred roughly once a month, and between February and April 1970 there had been two incidents of indirect fire, involving a company other than the veteran's. Therefore, the incident described by the veteran - of his having killed two Viet Cong sappers - could not be verified. Regarding his service as a whole, any combat with the enemy has yet to be verified. As to the "fragging" incident, which reportedly occurred at the veteran's barracks at the Long My Depot with the 1st Logistics Command, the JSRRC stated that further detail from the veteran would be needed to attempt any verification. The JSRRC indicated in June 2006 that several individuals with the name "Jackson" had been wounded or killed between February 1970 and February 1971. In July 2006, the RO sent correspondence to the veteran requesting that he provide more detailed information concerning this incident, such as the full name of the injured soldier, the month in which the incident occurred, and the individual's unit designation down to the company level. No response was received from the veteran. Thus, absent clear and sufficiently specific information, this reported stressor also could not be verified. As noted, the veteran also stated that he had witnessed the traumatic deaths of American soldiers. However, he provided no specific details about these incidents that would be capable of substantiation. Since there is no objective evidence (or independent corroboration) that the veteran was engaged in combat with the enemy, which has been defined as participation in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality (see VAOPGCPREC 12-99), the reported stressors must be corroborated by service records or other credible sources. See Moreau v. Brown, 9 Vet. App. 389 (1996); aff'd, 124 F.3d 228 (Fed. Cir. 1997). The sole corroborated potential stressors in this case are the confirmed sniper attacks on the installation where the veteran was stationed. The Court has clarified that it is error for the Board to require confirmation of a veteran's personal participation in stressors affecting his unit. Sizemore v. Principi, 18 Vet. App. 264, 270 (2004); Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). In Pentecost, the veteran was assigned to a unit that was at a documented location at the time of a documented enemy rocket attack. The location in Pentecost was Da Nang, a large military base. Id. Hence, it would appear that personal proximity to sniper fire is not required for the sniper fire on a veteran's installation of stationing to serve as a potential stressor to support a diagnosis of PTSD. The question thus becomes whether the confirmed incident in fact was a stressor for the veteran causative of his PTSD, as opposed to merely a potential stressor. That is ultimately a medical question to be addressed by examination. See Cohen v. Brown, 10 Vet. App. 128 (1997). The veteran has not been afforded a VA examination to address the question of whether current PTSD may be causally attributed to this confirmed potential stressor. Remand is required because the evidentiary record indicates the possibility of a link between service and current PTSD. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. For the remanded claim, the RO should ensure compliance with all notice and assistance requirements set forth in the VCAA and its implementing regulations, to include advising the veteran of the evidence necessary to substantiate his claim, as well as what evidence he is to provide and what evidence VA will attempt to obtain in accordance with Quartuccio v. Principi, 16 Vet. App. 183 (2002), and subsequent judicial authority, see Dingess v. Nicholson, 19 Vet. App. 473 (2006), Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Thereafter, afford the veteran a VA psychiatric examination to address the nature and etiology of any current psychiatric disorder, to include PTSD. The claims folders must be available to the examiner for review in conjunction with the examination. Any indicated, non-invasive tests should be conducted, to include psychological testing. The examiner should address the following: a. What current psychiatric disorders are present (meeting prescribed criteria under the DSM)? b. For each disorder identified, is it at least as likely as not that the disorder developed in service, is causally related to an injury or disease in service, or is otherwise causally related to the veteran's period of service from August 1969 to July 1971, or (alternatively) is such a relationship to service unlikely? In answering this question, the examiner should note and address records of medical treatment in service, post-service psychiatric treatment records, records of substance abuse after service (and the associated question of whether the veteran was self-medicating for psychiatric illness), and psychiatric evaluations after service. c. With regard to the veteran's claim for service connection for PTSD, the examiner must first address whether PTSD is present, including based on examination and review of the numerous treatment records bearing that diagnosis. If the examiner diagnoses PTSD, the examiner should then address whether it is at least as likely as not that the PTSD is causally related to the sole corroborated potential stressor in this case: that the Long My, Vietnam, installation sustained four incidents of sniper fire the while the veteran was attached to the US Army Support Command (USASC-QN) and while that command was located at Long My, with that sniper fire having occurred over an extended period, as indicated by Operation Reports - Lessons Learned stating that contact with the enemy over the period was "light", with sniper fire occurring roughly once per month, and with two of these incidents being indirect fire, involving a company other than the veteran's. The examiner should also consider that the veteran has alleged a number of other in-service stressors but with insufficient detail to allow for corroboration, or with corroboration otherwise not possible. In providing an opinion as to whether current PTSD is causally related to service, the examiner cannot rely on these uncorroborated stressors, as this is prohibited by regulation. 38 C.F.R. § 3.304(f). d. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. e. The examiner should provide complete explanations for his/her opinions. 5. Thereafter, a RO should readjudicate the remanded claim de novo. If the benefit sought is not granted to the veteran's satisfaction, the veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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. 2007). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).