Citation Nr: 1121502 Decision Date: 06/03/11 Archive Date: 06/09/11 DOCKET NO. 07-37 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post traumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active duty service from August 1970 to March 1972, and from September 1974 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 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, at 395-396; Cohen v. Brown, 10 Vet. App. 128, 142 (1997). During the course of the appeal, the criteria for service connection for PTSD, and, specifically verification of PTSD stressors, have changed. This amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a veteran is related to the veteran's fear of "hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. The amendment acknowledges the inherently stressful nature of the places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. The amended criteria is for application for claims that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010, as in this case. See 75 Fed. Reg. 39843 (July 13, 2010). As the Veteran's claim has yet to be decided by the Board and in light of his claimed stressors involving feelings of fear due to the being under attack from enemy fire and witnessing numerous people become wounded or killed during his service, the new criteria regarding the verification of PTSD stressors are applicable in this case. The Veteran sought service connection for PTSD in October 2004. See VA Form 21-4138. In an accompanying letter, the Veteran asserted that he was assigned to the "4/70 Armor," (4th Battalion, 70th Armor) 1st Armor Division while in Iraq. Personnel records on file do not verify which units/divisions he served with while in Iraq, they do show, however, that he was stationed in a "duty in imminent danger pay area (SWA)" from December 31, 1990, to May 2, 1991. As this case is being remanded anyway, 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. He claimed to have participated in three major armor battles while in Iraq from January 17, 1991, to March 29, 1991. He cited the names of three battles: Battle of Wadi Al Batin, Battle of 76 Easting, and Medina Ridge. The Board notes that the Battle of "73" Easting took place on February 26, 1991. He added that he was tasked with retrieving the dead bodies of both friendly and enemy soldiers. Some of the bodies had been eaten by dogs, and they buried these bodies. The Veteran also claimed that while in Vietnam he served with three different units: the 501stMaintance Battalion, 101st Airborne Division, and the 66th Trans Battalion. While with the Airborne division he claimed to have been involved in several engagements with North Vietnamese forces. He recounted an incident where a soldier was burned to death by a grenade near the back gate at Phu Bai; he added that he ran to assist but was unable to help. He mentioned that he saw dead enemy soldiers while on patrol during "Lam Son 810." The Veteran also indicated that while aboard a C-130 plane he traveled with two killed-in-action at his feet in body bags. A DA Form 2-1 shows that the Veteran served in Vietnam from June 21, 1971, to March 25, 1972. A buddy statement, dated in June 2006, is of record; this statement was proffered by a retired Sergeant Major. He recounted an incident, when he and the Veteran were assigned to the Headquarters Company with the 4th Battalion, 70th Armor, 1st Armored Division during Desert Shield and Desert Storm, where a tent caught fire burning night vision goggles and several cases of small arms ammunition. He mentioned that while engaged in combat with Iraq forces west of Wadi Al Batin, in late February 1991, the remains of dead Iraq soldiers were everywhere. He added that enemy artillery began falling near their location in the early morning hours of February 27, 1991; this followed making contact with Tawakalna Republican Guards Armored Division and the 52nd Mechanized Infantry Division. The Sergeant Major noted that, during this conflict, many enemy tank and air defense systems were destroyed. He added that the 1st Armored Division destroyed several enemy divisions and brigades. The Sergeant Major summarized his statement by attesting to the fact that the Veteran participated in combat operations while assigned to Headquarters Company, 4th Battalion, 70th Armor, 1st Armored Division. VA medical records on file include a September 2004 VA primary care/nurse assessment, completed by a registered nurse, which shows that PTSD screening was negative. An October 2004 VA mental health consult report is of record; the report was completed by a VA "PMHNP" (Psychiatric Mental Health Nurse Practitioner). The Veteran recounted some of his in-service stressors, to include fighting in three major battles, retrieving dead bodies, seeing dead bodies being eaten by dogs, a soldier being burned near the back gate at Phu Bai, and flying on a C-130 with dead bodies in body bags nearby. PTSD with anxiety, related to military experiences, was diagnosed. An October 2007 VA mental health clinic individual note includes diagnoses of PTSD and depression. A March 2008 VA mental health clinic individual note shows that the Veteran reported nightmares coinciding with the anniversary of the February 1991 battle at Medina Ridge during the Gulf War. PTSD and depression were diagnosed. A June 2007 letter from the U.S. Army and Joint Services Records Research Center (JSRRC) is of record. The letter, addressed to the Veteran, noted that a February 1991 unit history of the 2nd Brigade, 1st Armored Division (2nd Bde, 1st AD) was enclosed. The history was noted to verify that the 4th Battalion, 70th Armor (4th Bn, 70th AR) was assigned to the 2nd Bde, 1st AD. The history was also noted to verify the 4th Bn, 70th AR's involvement in the Battle of Madinah Ridge (on February 27, 1991). The RO is shown to have compiled a list of the Veteran's claimed stressors in July 2007. Only stressors concerning his service in Iraq however were included, none from his period of service in Vietnam were addressed. The RO concluded that the stressors lacked sufficient specificity to warrant their being forwarded to JSRRC for verification. Another RO letter, dated in June 2009, also found that the information required to corroborate the stressful events described by the Veteran was insufficient to send to JSRRC and/or insufficient to allow meaningful research of Marine Corps or National Archives and Records Administration (NARA) 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, 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). The Board finds that the Veteran's stressor assertions on file, some discussed above, do provide "basic information" required to conduct research. To this end, VA has a duty to provide a summary of his stressor statement to the JSRRC, and ask JSRRC to attempt to verify the stressor. 38 U.S.C.A. § 5103A(b) (West 2002). However, the Veteran also must detail specific information about his claimed stressors (to include more exact time frames during which these claimed stressors occurred) to facilitate the verification process. The Board also notes that the VA outpatient mental health records on file are unclear regarding the presence of a nexus between PTSD, if any, and the stressors claimed. Although a diagnosis of PTSD "related to military experiences" 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. However, the amendment to the regulation has changed the process for such verification in some instances. In this case, a diagnosis of PTSD had not been rendered by a VA psychiatrist or psychologist but by nurses only. The amendment to the regulation provides that, if the claimed stressor is related to the Veteran's fear of "hostile military or terrorist activity" and a VA psychologist or psychologist confirms that the claimed stressor is adequate to support the diagnosis, corroboration of the occurrence of the claimed stressor may not be necessary, provided that it is consistent with the places, types and circumstances of the Veteran's service. Thus, on remand, the RO should schedule the Veteran for an examination by a VA psychiatrist or psychologist. If the examiner diagnoses PTSD and confirms that the claimed stressor is adequate to support the diagnosis, the RO should then decide whether further development is necessary to corroborate the claimed stressor through additional attempts to obtain military records. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the RO decides that further corroboration is necessary, the Board notes that, given fact that the Veteran has provided very narrow periods of time in which his alleged stressors happened (from about January to March 1991 during the Gulf War; he did not provide dates concerning his claimed stressors occurring during the Vietnam War), an inquiry should be sent 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 the medical records in the claims file, depression. As in Clemons, this other diagnosis 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 October 2007 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. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, this case is REMANDED for the following action: 1. The RO/AMC 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 and depression. 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/AMC should schedule the Veteran for an examination by a VA psychiatrist or psychologist pursuant to the amendment to section 3.304(f). If the examiner confirms the diagnosis of PTSD which has been rendered by nurses, then the examiner should determine whether any of the claimed stressors is related to the Veteran's fear of "hostile military or terrorist activity" and, if so, the VA psychiatrist or psychologist should render an opinion as to whether such a claimed stressor is adequate to support the diagnosis. 3. If the VA psychiatrist or psychologist renders a diagnosis of PTSD and determines that the claimed stressor(s) is related to the Veteran's fear of "hostile military or terrorist activity" and that such a claimed stressor is adequate to support the diagnosis, then the RO must determine whether corroboration of the occurrence of the claimed stressor is necessary in this case pursuant to the new amendment to section 3.304(f) of VA regulations. If a psychiatric disorder other than PTSD is found, the examiner should 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 one of the Veteran's two periods of active military service (August 1970 to March 1972 - during the Vietnam War, and from September 1974 to March 1993 - including service during the Iraq War), 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 (2010), 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. 4. With regard to the claim for service connection for PTSD, if the RO decides that further corroboration of an alleged stressor is necessary, given fact that the Veteran has provided very narrow periods of time in which his alleged stressors happened (from about January to March 1991 during the Gulf War; he did not provide dates concerning his claimed stressors occurring during the Vietnam War), an inquiry should be sent to the JSRRC for stressor verification. In this regard, 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 - concerning both periods of active duty -- 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/AMC 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. Then the RO/AMC should provide JSRRC with a summary of the Veteran's stressors concerning his service during both the Vietnam War and the Iraq War, noting the more detailed information and copies of his two DD Form 214s, DA Form 2-1, any other appropriate service personnel records (to include those being sought in 2. above). JSRRC should be requested to provide any additional information that might corroborate the Veteran's alleged stressors. JSRRC should also be requested to furnish the unit histories and operational reports (including morning reports) for the units the Veteran was assigned to while in Vietnam and in Saudi Arabia, for the periods during which he served with such units. 5. 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 (2010). 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. 6. The RO/AMC 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/AMC must implement corrective procedures. 7. Following any other indicated development, the RO/AMC should readjudicate the appealed issue, now characterized as entitlement to service connection for a psychiatric disorder, to include PTSD and depression, 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 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. 2010). _________________________________________________ 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) (2010).