Citation Nr: 1009178 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 07-10 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post traumatic stress disorder (PTSD), depressive disorder, and anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from January 1966 to January 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim for service connection for post traumatic stress disorder (PTSD). The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing conducted in January 2010. At that time, the Veteran submitted additional evidence with a waiver of RO jurisdiction. A copy of the hearing transcript (transcript) is of record and has been reviewed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran claimed entitlement to service connection for PTSD in August 2005. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., the diagnosis must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and must be supported by findings on the examination report; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a). With regard to the third PTSD criterion, evidence of in-service stressors, the evidence necessary to establish that the claimed stressor occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). 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)(2). Section 1154(b) requires that the veteran have actually participated in combat with the enemy, meaning participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Cohen v. Brown, 10 Vet. App. 128, 142 (1997). In December 2005, on VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder, the Veteran claimed to have come under Viet Cong attack at Ton Son Nhut Air Base on December 7, 1966. He noted that he did not have a gun to fight with, as he was preparing to go on "R & R." He added that as a result of the attack 16 airmen were killed, and 10 planes were destroyed. The Veteran also recalled that 32 Viet Cong soldiers were also killed. In July 2006, the Veteran claimed that, while assigned to Co A 46th Engr Bn (Const) at Long Bien in December 1966 he went on "R&R" to Japan and traveled to Ton Son Nhut, where he came under fire from rocket attacks. He mentioned about 10 planes were destroyed in the attack. The JSRRC coordinator found that the Veteran had not provided evidence of his presence at Ton Son Nhut during an attack. He also claimed that in February 1967 he was assigned to pick up a Vietnamese civilian to work on his base. The Veteran claimed that at approximately 3 p.m. he traveled from Long Bien to "Bein Wough" [Bien Hoa], and when he was about halfway to his destination, he came under sniper fire. The bullet he alleged missed him by six inches. He claimed to have reported the incident to his company Captain, who he named. He added that he did not think the Captain "wrote any thing down," but that he had photos of the truck. Post-service medical records include findings relating to variously-diagnosed psychiatric disorders. A September 2005 VA "MHIS" Comprehensive Evaluation/Initial Treatment Plan includes diagnoses of depressive disorder "NOS" [not otherwise specified], anxiety disorder NOS, and rule out PTSD. A November 2005 VA mental health note shows a diagnosis of PTSD. The mental health note also showed that the Veteran informed the examiner that his worst in-service memory was picking up dead American soldiers and preparing their bodies to be shipped back home. The examining psychologist noted that the Veteran served in combat and endorsed symptoms consistent with PTSD. The Board notes that a diagnosis of PTSD by mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with applicable criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as to both adequacy of symptomatology and sufficiency of in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). A December 2005 VA primary care note includes a diagnosis of depression. Other VA mental health records, dated in April 2007, May 2008, and October 2009 include diagnoses of PTSD. A March 2007 VA memorandum reflect that an RO JSRRC (U.S. Army Joint Service Records Research Center) coordinator determined that the Veteran's stressors could not be verified. The memorandum stated that the information required to corroborate the claimed stressful events was insufficient to send to the JSRRC and/or was insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. At the January 2010 Board hearing, the Veteran testified that, in approximately November 1967 while driving a "deuce and a half" (transport truck) in a village just outside Bien Hoa, he came under enemy fire from a sniper. He claimed that this event constituted the stressor which lead to PTSD. The Veteran added that he had driven this same route twice a day in the transport truck almost the entire time he was stationed there. See pages two and six of transcript. He submitted a photocopy of a photo he claimed to show a bullet hole in his truck. Unfortunately, the quality of the photocopy is not sufficient to clearly see any type of damage to his truck. The Veteran added that this sniper episode occurred when he was travelling at 3 a.m. to pick up four "foreign nationals" [South Vietnamese workers]. See pages four and five of transcript. The Veteran also claimed that, in connection with VA mental health treatment from a specifically named VA physician, his actual in-service stressor was essentially his coming under sniper fire and not his previously claimed stressor relating to coming under attack at Ton Son Nhut. See page 11 of transcript. The Veteran's representative commented that the Veteran's complete service personnel records had never been obtained. See page 12 of transcript. Concerning this, review of the Veteran's personnel file associated with the claims folder appears to merely include his DA Form 20. On this form, the Veteran is shown to have served with the 46th Engineers Battalion (Const), Company A, from July 1966 to July 1967 during the Vietnam Counteroffensive Phase II. VA has a duty to assist a claimant in obtaining records in the custody of a Federal department or agency, including service treatment records. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2); see also Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007) (holding that the relevance of documents cannot be known with certainty before they are obtained). Accordingly, on remand, an attempt should be made to obtain the Veteran's complete personnel records. The Board notes that a denial of service connection for PTSD because of an unconfirmed stressor is improper unless the veteran has failed to provide the basic information required to conduct research, or the JSRRC, National Archives and Records Administration (NARA), or the Marine Corps, as appropriate, has confirmed that the stressor cannot be verified. If the JSRRC, NARA, or the Marine Corps requests a more specific description of the stressor in question, the veteran should immediately be asked to provide the necessary information. See VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iv., Ch. 4, Section H, part 32(k) (Aug. 1, 2006); VA Adjudication Procedure Manual M21-1MR, Part III, Subpart ii, Ch. 1, Section D, part 15(l) (Sept. 29, 2006). Therefore, on remand, the RO should attempt to verify the Veteran's alleged in-service stressor with the additional information provided at the Veteran's January 2010 hearing. In addition to the conflicting diagnoses in this case, the Board notes that the examination reports are unclear regarding the nexus between PTSD, if any, and the stressors claimed. Although a diagnosis of PTSD may have been given in this case, the requirements under the law to establish service connection for PTSD also include development of evidence to support that the stressful events he claims to have experienced in service actually occurred. Thus, on remand, the RO should attempt to verify the alleged stressful event in this case, and, if the stressors are verified, VA should also obtain a medical opinion as to this relationship on remand. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to stressor development, given the diagnoses of PTSD in the record and the fact that the Veteran has provided a very narrow period of time in which his alleged stressor happened (in about November 1967), a remand is required to send an inquiry to the JSRRC for stressor verification. The Board also observes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) considered a case in which the Board had denied a claim for service connection for PTSD where the Veteran specifically requested service connection for PTSD, but the medical record also included diagnoses of an anxiety disorder and a schizoid disorder. The Board narrowly construed the claim and denied upon the absence of a current diagnosis. The Court, in vacating the Board's decision, pointed out that a claimant cannot be held to a "hypothesized diagnosis - one he is incompetent to render" when determining what his actual claim may be. The Court further noted that the Board should have considered alternative current conditions within the scope of the filed claim. Id. The Board has reviewed the case at hand and notes that the fact pattern here is similar to that in Clemons. Notably, while this claim has been adjudicated by the RO and certified to the Board as a claim for service connection for PTSD, the Veteran has also been diagnosed with, as indicated in by the medical records in the claims file, depressive disorder NOS and anxiety disorder NOS. As in Clemons, these other diagnoses should be considered as part of the underlying claim in this case. To date, however, the RO has not adjudicated this claim so broadly as to incorporate psychiatric diagnoses other than PTSD. The RO has also not provided adequate notification addressing what is needed for a claim incorporating such diagnoses. This is significant because the statutory and regulatory provisions addressing PTSD claims, as contained in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), are different from the provisions addressing other service connection claims. See 38 C.F.R. §§ 3.303, 3.307, 3.309. While the statement of the case (SOC) informed the Veteran of 38 C.F.R. §§ 3.303 and 3.304(f), the Board notes that service incurrence of certain chronic diseases, including psychoses, will be presumed if manifest to a degree of 10 percent or more within one year of separation from active service. The Board also notes that, at the January 2010 Board hearing, the Veteran testified that he saw a VA physician (whom he specifically named but whose name is not included here to protect the Veteran's privacy) for mental health treatment every three months. See page 15 of transcript. Review of the claims file shows that the most recent records on file associated with treatment afforded the Veteran from this named VA physician is dated in October 2009. He added he also continued to receive group mental health therapy. Id. The most recent VA group mental health record associated with the claims file is dated in January 2010. As this case is being remanded, copies of any available VA records subsequent to October 2009 (for individual mental health treatment) and January 2010 (for group therapy records) need to be obtained and incorporated in the claims file. In this regard, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466- 67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, this case is REMANDED for the following action: 1. The RO should send the Veteran a letter explaining, pursuant to 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim on appeal, now characterized as service connection for a psychiatric disorder, to include PTSD, depressive disorder, and anxiety disorder. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim, in terms of 38 C.F.R. §§ 3.307 and 3.309, and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. 2. The RO should obtain any VA treatment records, dating from October 2009 to the present [individual mental health treatment], and from January 2010 to the present [group mental health treatment]. All obtained records should be associated with the Veteran's claims file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 3. The RO should contact the National Personnel Records Center (NPRC), the Army Reserve Personnel Center, Records Management Center (RMC), the appellant's unit, and any other appropriate location, to request the complete service personnel records of the appellant. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the RO should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The appellant should be notified of any action to be taken. 4. The RO should provide JSRCC with the a summary of the Veteran's stressors, noting the more detailed information and copies of his DD Form 214 and DA Form 20 any other appropriate service personnel records. JSRCC should be requested to provide any additional information that might corroborate the Veteran's alleged stressors. JSRCC should also be requested to furnish the unit history and operational reports (including morning reports) for the units the Veteran was assigned to while in Vietnam, for the period during which he served with such units. Based upon the Veteran's claimed stressors, the time frame from October to December 1967 is particularly important. 5. The RO, after its review of the report sought in #4 above from the JSRRC, should prepare a report detailing the nature of any stressor, if any, which it has determined is corroborated by by credible supporting evidence as having occurred. If no stressor has been verified, the RO should so state in its report. This report is then to be added to the claims folder. 6. Thereafter, the RO should arrange for the Veteran to be scheduled for a VA examination in connection with his claim. If a psychiatrist is not available to conduct the examination, an examination by a mental health professional qualified to conduct such an examination should be arranged. The claims folder and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: a. Based on a review of the claims folder and the examination findings, provide a diagnosis of any psychiatric disorders that are present, including PTSD. If it is not possible to provide a specific diagnosis, so state. b. If a psychiatric disorder is found, state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that it is etiologically related to or began during the Veteran's active military service (January 1966 to January 1968), as opposed to its being due to some other factor or factors. c. If PTSD is found, state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's PTSD is the result of a verified stressful event(s) as determined by paragraph #5 above that the Veteran experienced during his service in Vietnam (July 1966 to July 1967), as opposed to its being due to some other factor or factors. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]' 38 C.F.R. § 4.1 (2009), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. The Veteran is hereby notified that it is his responsibility to report for a VA examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 8. The RO must review the claims folder and ensure that the foregoing development actions, as well as any other indicated development, have been conducted and completed in full. If the response is deficient in any manner, the RO must implement corrective procedures. 9. Following any other indicated development, the RO should readjudicate the appealed issue, now characterized as entitlement to service connection for a psychiatric disorder, to include PTSD, depression disorder, and anxiety disorder, in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his accredited representative should be provided a supplemental SOC (SSOC) that includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required on the Veteran's part until he is notified. The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2009).