BVA9406379 DOCKET NO. 92-54 667 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD). 2. Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for a fungal infection has been submitted. 3. Entitlement to service connection for various disabilities claimed as the residuals of exposure to Agent Orange, including a lung disorder, a physical disorder causing itching, a chronic headache disorder of physical etiology, a physical disorder causing chronic congestion, and a physical disorder resulting in sore joints and muscles. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel REMAND The veteran had active military service from April 1966 to November 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Salt Lake City, Utah. The issue of entitlement to service-connection for a cardiac disability attributable to Agent Orange exposure has not been adjudicated by the RO. Accordingly, notwithstanding the certification of appeal, this "issue" is not in appellate status. The veteran contends that the RO erred when it failed to grant service connection for his claimed disabilities. He asserts that since his service in Vietnam, he has suffered many maladies including those due to exposure to combat, Agent Orange, and the tropical environment. He further states that these conditions have permanently changed his physical and mental well-being, and that since he incurred these disabilities due to no fault of his own, he should now be justly compensated. The record reveals that the veteran has been diagnosed for PTSD by a VA doctor in March 1990 at the Salt Lake City VA Medical Center. However, there remains some question as to what the actual stressors are which have caused this disorder. Moreover, it appears that very little effort has been undertaken to develop supportive evidence of combat stressors through the U.S. Army and Joint Service Environmental Support Group and the U.S. Marine Corps, as provided by the Department of Veterans Affairs Adjudication Procedure Manual, M21-1, paragraph 50.45(e), Woods v. Derwinski, 1 Vet.App. 406 (1991), and Zarycki v. Brown, No. 92-976 (U.S. Ct. Vet. App. Dec. 20, 1993). The veteran also contends that his various undocumented disabilities were caused by, and a result of, his exposure to chemical dioxins while in Vietnam. Then in February 1994, the Veterans Benefits Administration published VA Circular 21-94-1, Processing of Claims Based on Exposure to Herbicide Agents. This VA Circular specifies which disabilities will not be considered as a by-product of exposure to Agent Orange. Accordingly, this case is REMANDED to the RO for the following actions: 1. Upon receipt of VA Circular 21-94-1, Processing of Claims Based on Exposure to Herbicide, by the RO, the veteran's claim should be readjudicated. If it is determined that the veteran's claim is not well-grounded in accordance with Murphy v. Derwinski, 1 Vet.App. 78 (1990), and Grivois v. Brown, No. 92-289 (Jan. 5, 1994), the RO will vacate its previous decision(s) concerning this matter. 2. The veteran is to be requested to provide a detailed description (names, dates, and places) of the incidents which were life-threatening and/or significant while he was in Vietnam and which he believes caused PTSD and are now causing flashbacks and nightmares. The veteran is also to be requested to provide the full names of Lieutenant Farrell, SSGT Anderson, and Specialist Cruz, mentioned by the veteran as friends who were killed. He should provide, to the extent possible, specific information relating to this, including dates and circumstances, so that the incidents may be verified. The veteran should also be advised to submit any affidavits from others who have knowledge of the events which he alleges were stressors. 3. The veteran, in his testimony at the RO, testified that he was involved in at least twelve ambush missions. Moreover, he stated that he fired his weapon at the enemy, at the minimum, a total of eight times. However, a review of the veteran's official personnel file, including his DD Form 214, shows that the veteran was never awarded a Combat Infantryman's Badge, which would have occurred if the veteran had been involved in five skirmishes with the enemy. The RO should request that the veteran explain this discrepancy. 4. The veteran also testified that his artillery battery lobbed shells into a Vietnamese village not occupied by North Vietnamese regulars, Viet Cong, and North Vietnamese sympathizers. He claimed his battery destroyed the village and killed all of the inhabitants of that village. The location, date, the outfit involved to which he was assigned, and other specific information should be provided by the veteran in order that the incident may be verified. 5. After the veteran has provided the requested information, the RO should request assistance from the U.S. Army and Joint Service Environment Group (ESG) and the Headquarters Marine Corps (HQMC) to obtain any information regarding the appellant, particular during his tour of duty in Vietnam. The RO should request any information regarding the veteran's unit, the 1st CAVDIV, and any support given or received to other military components, commands, and services. The RO should also request any information regarding participation of members of the cited unit in combat, in receiving enemy fire, and treatment of wounded American and Vietnamese soldiers and civilians. Any information acquired should be added to the claims folder. The RO should undertake any further development that the ESG and HQMC indicate may be practicable, e.g., inquiry of the National Archives or other historical archives. 6. The RO should request that a social and industrial survey by a social worker, followed by a field investigation, to gather data as to the behavior exibited by the veteran. The social worker who conducts this survey should identify those activities that comprise the veteran's daily routine. The scope of the social survey should include the nature and extent of the veteran's participation in activities at home and in the community. 7. To the extent feasible, the field investigator should obtain additional information, based on the data compiled by the social worker, to include information obtained through interviews with members of the veteran's community as identified by the social worker, such as neighbors, relatives, storeworkers, local or community leaders, and former employers and co-workers. The inquiries should be directed towards eliciting information about the veteran's behavior and functioning capacity to adapt to a workplace environment. 8. While in service, the veteran had an anxiety type reaction, and it appears that some of those symptoms are still found on psychiatric evaluation. As a result of this prior psychological symptoms and the current diagnosis of PTSD, the veteran should be re-examined by a Board of two psychiatrists who have not previously examined him to determine the nature and severity of any psychiatric disorder(s). Each psychiatrist should conduct a separate examination with consideration of the criteria for PTSD, and the examination should be conducted in accordance with the VA Physician Guide for Disability Evaluation Examinations (1985). The report of examination should contain a detailed account of all manifestations of the disability(ies) found to be present. If there are different psychiatric disorder(s) other than PTSD, the examiners should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or the other, it should be so specified. If a diagnosis of PTSD is appropriate, the examiners should specify the credible "stressors" that caused the disorder and the evidence upon which they relied to establish the existence of the stressors. The examiners should also describe which stressors the veteran presently experiences and how he experiences them. The psychiatrists should describe how the symptoms of PTSD affect his social and industrial capacity. The report of the examination should include a complete rationale for all opinions expressed, and should be comprehensive. All necessary studies or tests including psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory; the PTSD Rating Scale; the Mississippi Scale for Combat-Related Post- Traumatic Stress Disorder are to be accomplished. The diagnosis should be in accordance with the DSM-III-R (1987). The entire claims folder and a copy of this Remand must be made available to and reviewed by the examiners prior to the examination. The RO should review the examination reports and determine if they are adequate for rating purposes and in compliance with this remand. If they are not, they should be returned to the examiners for supplemental action. Following completion of the requested development, the veteran's claim should be readjudicated. If the decision remains unfavorable, he and his representative should be given a supplemental statement of the case and allowed sufficient time for a response. Thereafter, the claim should be returned to the Board for further consideration. No action is required of the veteran until he is contacted by the regional office. The purpose of this REMAND is to ensure due process and to obtain additional clarifying medical and military evidence. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 W. H. YEAGER, JR., M.D. BETTINA S. CALLAWAY JACK W. BLASINGAME 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).