BVA9511765 DOCKET NO. 93-16 351 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder, (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from February 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (the Board) from a December 1992 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) which denied the veteran’s claim for entitlement to service connection for PTSD. REMAND The threshold question in this case is whether the claim is well-grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than an allegation; the claim must be accompanied by supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In order for the veteran to be granted service connection, there must be evidence of both a service connected disease or injury and a present disability which is attributable to such disease or injury, otherwise, the claim is not well-grounded. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The significance of presenting a well grounded claim is that such a claim triggers the VA’s chronological obligation to assist the claimant in the developing facts pertinent to the claim. Where the claimant fails to present a well grounded claim, there is no duty to assist him on the part of the VA. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The United States Court of Veterans Appeals has underscored that if the VA volunteers assistance in developing facts pertinent to a claim that is not well grounded, such action raises “grave questions of due process . . . if there is apparent disparate treatment between claimants” between those who have been their initial burden of presenting a well grounded claim and those who have not. Grivois v. Brown, 6 Vet.App. 136, 140 (1994). In other words, if the claimant does not present a well grounded claim, the VA not only has no duty to assist, but also it may not volunteer to assist in the development of the claim. Under 38 C.F.R. § 3.304(f), 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. The Board finds that when this regulation is read in light of Rabideau, a showing of current disability on the facts of this case would mandate that the record reflect a diagnosis of PTSD. See Zarycki v. Brown, 6 Vet.App. 91 (1993). The current record, however, does not reflect that the appellant has ever been diagnosed as having PTSD. A summary of VA hospitalization in July and August 1992 shows the appellant provided an account of having been “MIA or AWOL for 10 days while in Vietnam after he was separated from his unit.” The final diagnoses entered were no diagnosis on Axis I and schizotypal personality disorder on Axis II. In his July 1992 Statement in Support of Claim, the veteran indicated that there was medical evidence from the Social Security Administration “concerning PTSD.” Although this statement is vague, the Board construes this to mean that a diagnosis of PTSD may be shown by those records. Therefore, to the extent that records with the Social Security Administration reflect a diagnosis of PTSD, this claim would be “capable of substantiation,” and thus well grounded under Murphy. In light of the above discussion, this case must be remanded for certain specific actions by the RO. If, and only if, a diagnosis of PTSD is shown by the records in possession of the Social Security Administration, or the veteran submits additional medical evidence reflecting a diagnosis of PTSD, a duty to assist the veteran in the development of facts pertinent to the claim will attach pursuant to 38 U.S.C.A. § 5107. The veteran has requested that a VA examination be scheduled to establish a current diagnosis of PTSD. The Board notes that VA examinations have been scheduled twice previously both at the end of June 1992, and the end of August 1992, and at both times the veteran failed to report for the examinations. The first time the veteran alleged that he did not receive timely notice of his appointment, and it was subsequently rescheduled. The second time he stated that he failed to report due to hospitalization. The veteran was hospitalized from July 15 to August 3, 1992, but the examination was scheduled for August 31, 1992. The veteran’s representative stated that his confusion in this matter was possibly associated with the veteran’s schizotypal personality disorder. The Board is not satisfied that the failure of the appellant to report for his VA examinations constituted good cause under the provisions of 38 C.F.R. § 3.655, and as such a rescheduled examination is not warranted. Moreover, records from the veteran’s hospitalization for pychological testing which occurred between the time of the VA examinations scheduled for July and August 1992 reflected that “there has been no evidence of major depression or PTSD,” and resulted in a diagnosis of schizotypal personality disorder. More fundamentally, since there was no diagnosis of PTSD of record, there was no duty to assist the appellant and the RO erred in scheduling the examinations in the first place. The veteran has also reported that he is pursing medical records from a family doctor, clinics in Austin, and the Brachenridge (or Breckenridge) Hospital. However, no specificity as to names, dates, locations, or the contents of these records has been offered. As the duty to assist in the development of facts pertinent to the claim does not attach until a well grounded claim has been submitted, and none of these records have been specifically cited as assisting in that regard, that is, by showing a diagnosis of PTSD, evidentiary development including obtaining these records is not warranted until it is determined that the claim is well grounded, and the appellant makes a showing that the records would be relevant to the matter on appeal. If a diagnosis of PTSD is shown by the records with the Social Security Administration, or the veteran submits medical records showing a diagnosis of PTSD, thereby making the claim well grounded in that it is capable of substantiation, then additional development of the claim is necessary. The following discussion concerns the impact of the case law from the Court on this additional development, and is applicable only if a well grounded claim is submitted. The veteran has described several combat incidents which are alleged as PTSD stressors. 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, Combat Action Ribbon, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. In addition, VA's Manual M21-1 contains specific procedures for VA to follow in evaluating claims for service connection for PTSD. Manual M21-1, Part VI, Para 7.46(e), (f) (Dec 21, 1992). In Zarycki, the Court set forth procedures for VA to follow in adjudicating claims for service connection for PTSD. The Court concluded that the statutory and regulatory criteria provided a framework in which the evidence necessary to establish the occurrence of a recognizable 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 stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that 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). If 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, unless it is substantiated by service records. Id. The service medical records are negative for complaints, treatment or diagnosis of any psychoneurotic disorder. The discharge certificate shows that the veteran was a radio mechanic. He received the National Defense Service Medal, a Vietnam service Medal, and an Armed Forces Expeditionary Medal for service in the Dominican Republic. On its face, the current evidence of record does not establish that the appellant "engaged in combat with the enemy." Although he received several awards, these were not of the type related to combat activities. As such, the veteran is not shown to have received one of the citations specified in 38 C.F.R. § 3.304(f). As noted above, even if the record contained evidence that the appellant "engaged in combat with the enemy," his accounts would still have to be reviewed to determine if they were credible and consistent with the circumstances, conditions and hardships of his service. The Court further held that even if it is found that there was a stressful event in service, it must still be determined whether that 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, (Third Edition Revised 1987) (DSM-III- R). The essential feature of PTSD is "a psychologically distressing event that is outside the range of usual human experience." The most common traumata involve a threat to one's life, a threat to the lives of one's friends, or seeing another person who has recently been seriously injured or killed as the result of an accident or physical violence. Zarycki at 98. The Court emphasized, however, that mere service in a combat zone, in and of itself, was insufficient to support a diagnosis of PTSD. In West v. Brown, No. 92-890 (U.S. Vet. App. Aug. 8, 1994), the Court elaborated on the analysis in Zarycki. In West, the Court held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. The Court also held in West that a psychiatric examination for the purpose of establishing the existence of post-traumatic stress disorder was inadequate for rating purposes because the examiners relied, in part, on events whose existence the Board had rejected. The veteran has alleged that several combat incidents were PTSD stressors. He has reported in his September 1992 Statement in Support of Claim the following alleged events: (1) an incident of electric shock on board ship resulting in his blacking out; (2) a night fire fight at an air base at Can To (it is not clear that the appellant claims he was physically present for this event); (3) “skirmish attacks experienced” over two months time in Mekong River duty (again the statement is not entirely clear as to whether the appellant participated in these events); (4) in February 1967 by direct order of an allegedly drunk officer, he was abandoned and left at Vung Tau pier, sustained a head injury and blacked out, then discovered twelve days had elapsed, subsequently, he was classified as AWOL, threatened with court martial, verbally traumatized, emotionally abused, harassed, intimidated, and given bad assignments; (5) while en route to Pearl Harbor from Subic Bay during a typhoon the ship’s radar gave out, the veteran was selected to climb the mast and change the radar unit integration tube with the radar still turned on for about three minutes, receiving “close if not a lethal dose” apparently of radiation; and (6) in 1975, he states he was severely burned on both legs in a mobile home fire resulting from attempted homicide by his ex- spouse. Obviously, this last incident occurred when the appellant was no longer in service. Upon reviewing Zarycki and West, it appears that in approaching a claim for service connection for post-traumatic stress disorder, the question of the existence of an event claimed as a recognizable stressor must be resolved by adjudicatory personnel. If the adjudicators conclude that the record establishes the existence of such an event claimed as a stressor or stressors, then and only then, the case should be referred for a medical examination to determine the sufficiency of the stressor and as to whether the remaining elements required to support the diagnosis of post- traumatic stress disorder have been met. In such a referral, the adjudicators should specify to the examiner(s) precisely what stressors have been accepted as established by the record, and the medical examiners must be instructed that only those events may be considered in determining whether stressors to which the appellant was exposed during service were of sufficient severity as to have resulted in current psychiatric symptoms. In other words, if the adjudicators determine that the existence of an alleged stressor or stressors in service is not established by the record, a medical examination to determine whether post- traumatic stress disorder due to service is present would be pointless. Likewise, if the examiners render a diagnosis of post- traumatic stress disorder that is not clearly based upon stressors in service whose existence the adjudicators have accepted, the examination would be inadequate for rating purposes. In light of all of the above considerations, the case is REMANDED to the RO for the following actions: 1. The RO should request that the SSA provide a copy of any decision awarding benefits and a copy of the medical records upon which the determination to grant original or continuing entitlement to such benefits was based. The attention of the SSA should be respectfully invited to 38 U.S.C.A. § 5106 (West 1991) and Murincsak v. Derwinski, 2 Vet.App. 363 (1992). 2. The veteran should be invited to provide medical evidence showing that a diagnosis of PTSD has been made. In this context, the Board again advises the appellant that under the controlling law and case law from the Court, there is no obligation for the VA to provide him with an examination prior to the submission of such evidence. Subsequent development should be undertaken if, and only if, a diagnosis of PTSD is shown by the SSA records or the veteran submits into the record medical evidence showing that a diagnosis of PTSD has been made. 3. The RO should request from the veteran a comprehensive statement containing as much detail as possible regarding the stressors to which he alleges he was exposed in service. These incidents are briefly described on page 5 and 6 of this remand. The veteran should be asked to provide specific details of the claimed stressful events during service, such as dates, places, detailed descriptions of events, and identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment or any other identifying detail. The veteran is advised that this information is vitally necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 4. With the additional information obtained, the RO should review the file and prepare a summary of all the claimed stressors. This summary, and all associated documents, should be sent to the United States Army and Joint Services Environmental Support Group, 7798 Cissna Road, Springfield, Virginia 22150. They should be requested to provide any information which might corroborate the veteran's alleged stressors. 5. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to an event or events alleged as a stressor or stressors in service, and if so, what was the nature of the specific event or events claimed as a stressor or stressors. In rendering this determination, the attention of the RO is directed to the cases of Zarycki and West as discussed in this remand. The Board points out again that if the appellant did not engaged in combat with the enemy, his accounts must be supported by service records. The RO must specifically render a finding as to whether the appellant "engaged in combat with the enemy." If the RO determines that the record establishes the existence of an alleged event claimed as a stressor or stressors, the RO must specify what was the nature of this event that has been established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 6. If, and only if, the RO determines that the record establishes the existence of an event or events alleged as a stressor, then the RO should arrange for the veteran to be accorded an examination by a board of two VA psychiatrists, if available, who have not previously examined him to determine the diagnoses of all psychiatric disorders that are present. The claims folder and a copy of this remand should be made available for the examiners to review in conjunction with their examination. The RO must specify for the examiners the alleged events claimed as the stressor or stressors that it has determined are established by the record and the examiners must be instructed that only those events may be considered for the purpose of determining whether exposure to a stressor in service has resulted in current psychiatric symptoms, and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. The examination report should reflect review of pertinent material in the claims folder. The examiners should integrate the previous psychiatric findings and diagnoses with current findings to obtain an accurate of the nature of the veteran's psychiatric status. If the diagnosis of post- traumatic stress disorder is deemed appropriate, the examiners should comment whether the alleged events or events in service were of the quality to constitute a “stressor” for purposes of establishing the presence of PTSD, and as to whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the RO. The report of examination should include the complete rationale for all opinions expressed. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. 7. The RO should then review the record and ensure that all the above actions have been completed. When the RO is satisfied that the record is complete and the psychiatric examination is adequate for rating purposes, the claim should be re- adjudicated. Thereafter, the case should be reviewed by the RO. If the benefits sought are not granted, a supplemental statement of the case should be issued to the appellant and his representative and they should be provided an opportunity to respond. Subsequently, the claims folder should be returned to the Board for further review, if necessary. By this action, the Board intimates no opinion legal or factual, as to the ultimate disposition warranted as to this specific issue. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1994).