BVA9402881 DOCKET NO. 91-56 738 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and Mr. [redacted] ATTORNEY FOR THE BOARD J. Johnston, Associate Counsel INTRODUCTION The veteran had active service from May 1967 to February 1969 with service in the Republic of Vietnam from March to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1990 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the claimed disabilities. A notice of disagreement was received in May 1990, and a statement of the case was issued in June 1990. The substantive appeal was received in July 1990. A hearing was conducted at the RO in August 1990, and the hearing officer's decision was issued in October 1990. A supplemental statement of the case was issued in October 1990. The case was initially received at the Board and docketed in January 1991. In May 1991, the Board remanded the case for additional evidentiary development. Supplemental statements of the case were issued in September 1991, and April 1992. The case was returned to the Board and docketed in November 1992. The veteran is represented by Disabled American Veterans which submitted written argument in his behalf. REMAND In regard to the veteran's claim for service connection for PTSD, the Board's May 1991 remand action specifically requested a series of evidence developing steps to be undertaken by the RO. Although the veteran's response to the RO's repeated requests for more detailed and specific information regarding the veteran's inservice stressors did not provide many additional details, the RO nonetheless needed to continue with the development called for in the Board's prior remand. Because the veteran's acquired psychiatric disorder has been diagnosed alternatively as depression, behavior and adjustment problems, mixed personality disorder with passive-aggressive and avoidant features and secondary mild dysthymia, and PTSD, an additional VA examination is necessary to resolve these inconsistent diagnoses. Additionally, although the veteran has not provided many specific details of his inservice stressor, he did indicate in testimony at a personal hearing at the RO that his single serious stressor involved an incident in May 1968. He testified that "[redacted]," a rider in his truck (possibly assigned to the same unit as the veteran), was killed during an ambush while the veteran was attempting to complete an ammunition supply mission to a firebase. This information should be specific enough to seek verification from the United States Army and Joint Services Environment Support Group (ESG). In the case of Zarycki v. Brown, No. 92-976 (U.S. Vet. App. December 20, 1993) the Court of Veterans Appeals (Court) provided a detailed explanation of the development required in claims for service connection for PTSD. Once the claimant has satisfied the initial burden of setting forth a well-grounded claim, as the veteran in this case has done, the VA is statutorily required to assist the claimant in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a); see also Sokowski v, Derwinski, 2 Vet.App. 75, 77 (1991). Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. Fed. Reg. 93-11816, May 19, 1993 (to be codified at 38 C.F.R. § 3.304(f)). Additionally, VA's Manual M21- 1 contains specific procedures for the VA to follow in evaluating claims for service connection for PTSD. Id. at Part VI, para. 7.46(e)(f) (Dec. 21, 1992). In accordance with this guidance, the evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." Where it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy, and the claimed stressor is related to such combat, the veteran's lay testimony regarding the claimed stressor must be accepted as conclusive as to its actual occurrence and no further development for corroborative evidence will be required, provided the veteran's testimony is found to be credible and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d)(f); Manual M21-1, Part VI, para. 7.46(e)(f). Where, however, the VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor. Id. Therefore, the Court has held that the VA must make specific findings of fact as to whether or not the veteran was engaged in combat with the enemy and, if so, whether the claimed stressor is related to such combat. Finally, should the occurrence of a stressful episode be established, it must also be determined whether the claimed stressful event was of sufficient gravity to support a diagnosis of PTSD as required in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (3d ed., revised 1987) (DSM-III-R). Mere service in a combat zone, solely in and of itself, does not adequately support a diagnosis of PTSD. The stressor required to support a valid diagnosis of PTSD requires an event during service "that is outside the range of usual human experience and that would be markedly distressing to almost anyone," such as experiencing an immediate threat to one's life or witnessing another person being seriously injured or killed. Id. Reviewing the evidence of record, it is unclear whether the veteran actually served in combat. There is no evidence of any combat citation of the type referred to above. Therefore, it is necessary to attempt to corroborate the veteran's claimed inservice stressor. Additionally, in accordance with the requirements of 38 C.F.R. § 3.304(f), it is also necessary to determine whether the veteran is clearly diagnosed as having PTSD. The case is, therefore, again REMANDED to the RO for the following action: 1. The veteran should again be requested to submit any additional medical records or other relevant evidence that he may have which is pertinent to his claim for PTSD. Although he provided certain specific information in testimony during his personal hearing at the RO in August 1990, the veteran should be requested to answer the followings questions: What unit was [redacted] assigned to, and/or was it the same unit to which the veteran was assigned?; On the day of the ammunition supply mission in approximately May 1968, identify the military location from which this mission originated, and identify the military firebase to which this delivery was to be made. He should also be requested to provide any other specific personal identifiers of [redacted] such as his precise rank, State and/or hometown of origin, length of service, age, and other details about this man that he can recollect. Any information obtained should be added to the claims folder. 2. After completing the above development, any information received, together with a copy of the veteran's service personnel records, information pertaining to his Vietnam experience, and a copy of this REMAND decision should be forwarded to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield VA 22050 (note this new address), for verification of the reported incident. 3. After completing the above development, the veteran should be afforded a special VA psychiatric examination by a psychiatrist who has not previously examined him, on a fee-basis if necessary, to determine the exact nature and appropriate diagnosis of his psychiatric disorder, if any. The claims folder and all evidence obtained pursuant to this remand should be made available to the examiner prior to evaluating the veteran's case. Additionally, psychological testing should be performed and the results should be reviewed before a psychiatric diagnosis is made. Psychological testing should include the use of PTSD subscales. Psychiatrists should identify the stressor(s), the objective evidence of the stressor(s), and specific symptoms supporting the diagnosis of PTSD, if found, in accordance with the VA Physician's Guide for Disability Evaluation Examinations and The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (3d ed., revised, 1987). 4. The veteran's claim for service connection should then be reviewed by the RO to determine whether the veteran has a psychiatric disorder of service origin. The RO should consider all of the evidence of record and all relevant applicable regulations. The RO should make a specific finding of whether or not the veteran was engaged in combat with the enemy. If the decision remains adverse to the veteran, the case should be returned to the Board for further appellate review, after compliance with the pertinent law and regulations regarding appeals. The veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. No further action is required until the veteran receives further notice. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * PHILIP E. WRIGHT *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).