Decision Date: 07/24/95 Archive Date: 07/25/95 DOCKET NO. 92-01 883 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Anthony P. Adorante, Esq. ATTORNEY FOR THE BOARD C. Chaplin, Associate CounselREMANDThe veteran had active service from December 1943 until April 1946 and from May 1946 until February 1947. By a Memorandum Decision issued by the United States Court of Veterans Appeals (Court) in February 1995, the September 17, 1993 decision of the Board of Veterans' Appeals (Board) was vacated and the claim was remanded for further proceedings consistent with the Court's decision. In his appeal to the Court the appellant raised an issue of clear and unmistakable error which the Court determined was not properly before the Court as it was not raised to the Board. In addition, the Court noted that, in a case decided after the appellant had filed his brief, the Court of Appeals for the Federal Circuit determined that the clear and unmistakable error review authority in 38 C.F.R. § 3.105(a) (1994) relates only to review of final RO decisions which had not been appealed to the Board. See Smith (William) v. Brown, 35 F.3d 1516, 1527 (Fed.Cir. 1994). As the case was remanded to the Board, the appellant, through his attorney, has raised a claim of clear and unmistakable error on a rating decision dated August 1985. In addition, the appellant claims that all following ratings concerning this veteran's PTSD case including the BVA decision are invalid based on the clear and unmistakable error in the rating of August 1985. The August 1985 RO decision had been affirmed in a subsequent February 1990 Board decision which, like the RO, denied the appellant's claim for service connection for PTSD. The appellant in the present case appealed the AOJ decisions to the Board which affirmed the AOJ decisions. Therefore, the AOJ decisions were subsumed by the Board decision, and no claim of CUE under 38 C.F.R. § 105(a) (1994) exists as a matter of law with regard to those AOJ decisions. See Smith v. Brown, 35 F.3d 1516, 1527 (Fed.Cir. 1994); Duran v. Brown, 7 Vet.App. 216 (1994); see also Talbert v. Brown, 7 Vet.App. 352 (1995); 38 C.F.R. § 20.1104 (1994) (when a determination of the AOJ is affirmed by the BVA, the determination is subsumed by the final appellate decision). Thus, there is no CUE claim present for consideration by this Board. Post-traumatic stress disorder The appellant's claim was previously denied on the merits by the Board in February 1990. The evidence submitted since the Board's February 1990 decision consisted of two April 1991 hospitalization summaries from the Syracuse VA Medical Center which stated, as part of the appellant's history, that he had been wounded in combat and had received the Purple Heart. The Court determined that these hospital summaries were "new" and served to corroborate the earlier medical opinions that the veteran suffers from post- traumatic stress disorder caused by an in-service stressor. See Paller v. Principi, 3 Vet.App. 535, 538 (1992). The Court instructed the Board to make specific findings as to the materiality of the newly submitted evidence and provide adequate reasons or bases for such findings. When a claimant seeks to reopen a previously and finally denied claim, the Board is required to conduct a two-step analysis to determine whether new and material evidence has been presented. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must decide whether the evidence presented or secured is new and material. Second, if new and material evidence has been submitted, the Board must then adjudicate the claim de novo considering all evidence, both new and old. See Manio, 1 Vet.App. at 145. In conducting the first part of the Manio two-step analysis under § 5108, the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible. See Justus v. Principi, 3 Vet.App. 510, 513 (1992); see also Cuevas v. Principi, 3 Vet.App. 542, 547-48 (1992). Any presumption of credibility required by Justus during the first step of the Manio two- step process is inapplicable during the second step when the claim is adjudicated de novo by evaluating both the weight and credibility of all the evidence of record. See Justus, 3 Vet.App. at 513. As the Court has found the two hospital summaries submitted after the Board's decision in September 1993 to be "new" evidence, we must, following the above stated guidelines, presume that the newly submitted evidence is credible. Thus, the veteran's history of being in combat and receiving a Purple Heart is presumed credible. We consider it to be material as relative to and probative of the issue at hand, and of sufficient weight to present a reasonable possibility that the new evidence, when viewed in the context of all the evidence, new and old, would change the disposition of the claim. Accordingly, we find the evidence to be new and material and reopen the claim. The Court further instructed that if we determined that the evidence was "new and material" and reopened the claim, we must then process it in accordance with VA ADJUDICATION PROCEDURE MANUAL M21-1, Part VI, para. 7.46(e), (f), and 38 C.F.R. § 3.304(f) (1994). The Court cited West (Carlton) v. Brown, 7 Vet.App. 70, 75-76 (1994) and Zarycki v. Brown, 6 Vet.App. 91, 97-98 (1993). The veteran's principal psychiatric diagnosis is post- traumatic stress disorder (PTSD). Critical elements of this diagnosis, most fundamentally those concerning the existence of a stressor or stressors, appear to be based wholly upon statements provided to the various examiners by the veteran. The veteran has claimed that he was in a truck accident, that his convoy going overseas suffered a submarine attack, that he was in combat and received the Purple Heart. The question of whether the appellant was exposed to a stressor in service is a factual determination and VA adjudicators are not bound to accept such statements simply because treating medical providers have done so. Wood v. Derwinski, 1 Vet.App. 190 (1991) (affirmed on reconsideration, 1 Vet.App. 406 (1991)); Wilson v. Derwinski, 2 Vet.App. 614 (1992). While the RO has attempted to corroborate the veteran's history, upon review the Board concludes that further efforts in this area are warranted under the duty to assist. Further, the Court has articulated a number of additional considerations that must be addressed since the case was last reviewed by the RO. These also must be addressed upon remand and they are in many respects tied to development of the factual record. The veteran's accounts of alleged stressors are vague and raise significant questions as to the veteran's credibility that cannot be ignored, and are likewise tied to development of the factual record. The Board notes that the Court held in West v. Brown, 7 Vet.App. 70 (1994), in effect, that a psychiatric evaluation based upon an incomplete or questionable history is inadequate for rating purposes and frustrates the efforts of judicial review. In the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set forth the framework for establishing the presence of a recognizable stressor and its impact, the prerequisite to support the diagnosis of PTSD. The Court's framework consists of two major components, with the first component involving the evidence required to demonstrate the existence of an alleged stressful event, and the second involving a determination as to whether the stressful event is of sufficient gravity to support the diagnosis of PTSD. With regard to the first component, under 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304 (1994), and the applicable VA Manual 21-1 provisions, the evidence necessary to establish the occurrence of the recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Hayes v. Brown, 5 Vet.App. 60 (1993). The Court, in Hayes, articulated a two-step process of determining whether a veteran has "engaged in combat with the enemy." First, it must be determined, through recognized military citations or other supporting evidence, whether the veteran was engaged in combat with the enemy, and whether the claimed stressors are related to said combat. If the determination, with respect to this type, is affirmative, then (and only then) the second step requires that the veteran's lay testimony, regarding the claimed stressors, must be accepted as conclusive. No further development or 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." Zarycki, at 98. In other words, the claimant's assertions that he fought against an enemy are not sufficient, by themselves, to establish this fact. The record must first contain recognized military citations or other supportive evidence to establish that he "engaged in combat with the enemy." Where 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. See Hayes, supra. Instead, the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor. Id. Once the occurrence of a stressful episode is established , it then must be determined whether the claimed stressful event was of sufficient gravity to support a diagnosis of PTSD. In West, the Court elaborated on its analysis in Zarycki. In Zarycki, the Court held that in addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event was sufficient to give rise to PTSD. Zarycki, at 98-99. 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 PTSD was inadequate for rating purposes because the examiners relied, in part, on events whose existence the Board had rejected. Upon reviewing Zarycki and West, it appears that in approaching a claim for service connection for PTSD, 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 a stressor or stressors, then and only then, the case should be referred for a medical examination to determine (1) the sufficiency of the stressor; (2) whether the remaining elements required to support the diagnosis of PTSD have been met; and (3) whether there is a link between a currently diagnosed PTSD and a recognized stressor or stressors in service. 38 C.F.R. § 3.304(f) (1994). In such a referral, the adjudicators should specify to the examiner(s) precisely what stressor or 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 the appellant was exposed to a stressor and what the nature of the stressor or stressors was to which the appellant was exposed. 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 PTSD due to service is present would be pointless. Likewise, if the examiner(s) render(s) a diagnosis of PTSD that is not clearly based upon stressors in service whose existence the adjudicators have accepted, the examination would be inadequate for rating purposes. Review of the record reflects that the veteran's DD Forms 214 (Report of Transfer or Discharge), contain no reference to any combat citations. The administrative records now on file do not show that the veteran was entitled to receive the Purple Heart Medal, Combat Infantryman Badge, or other awards or decorations appropriate to his branch of service denoting participation in combat with the enemy. Further, the Board notes that the Court has indicated that the mere presence in a combat situation is not sufficient to show that an individual was engaged in combat with the enemy. Wood v. Derwinski, 1 Vet.App. 190 (1991), affirmed on reconsideration, 1 Vet.App. 406 (1991). In light of the foregoing, and recognizing the VA's duty to assist the appellant in the development of facts pertinent to his claims under the provisions of 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1994), the Board feels that the case should be remanded to the RO for the following actions: (NOTE: In all contacts with the veteran, it is important that the provisions of VBA Circular 21-92-4 (May 13, 1992) be followed.) 1. The RO should contact the appellant and request that he provide the names and addresses of any health care providers who have treated him for PTSD in the years following service, and, if possible, specify the approximate dates of treatment. Then, after any necessary authorization is obtained from the veteran, the RO should obtain copies of all treatment records for the appellant from the health care providers identified. In any event, copies of any VA treatment records, in addition to the ones already in the file, pertaining to treatment for PTSD, should be obtained and associated with the claims file. 2. The veteran should be requested to submit any documentation that he may have pertaining to the award of the Purple Heart, for example, a copy of the authorizing orders or a copy of the citation for the decoration. 3. The RO should request that the appellant provide another comprehensive statement containing as much detail as possible regarding the stressor(s) to which he alleges he was exposed while in service. The appellant should be asked to provide the names of units to which he was attached, specific details of the claimed stressful elements during service, such as dates, places, detailed descriptions of events, and any other identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment, or any other identifying detail. The appellant is advised that this information is vitally necessary to obtain supportive evidence on the stressful events and he must be as specific as possible. He should be informed that, without such details, an adequate search for verifying information cannot be conducted. He should be further advised that a failure to respond may result in an adverse action against his claim. 4. Thereafter, the RO should contact the Director, National Archives and Records Administration (NARA), ATTN: NCPNA-O, 9700 Page Boulevard, St. Louis, Missouri 63132, and request copies of the morning reports pertinent to the events identified by the appellant. The RO should also attempt to obtain the operational reports, lessons learned statements, or any other information regarding activities that would shed light on events related by the appellant. When this information has been obtained, it, together with the stressor information that has been provided/obtained from the appellant, should be forwarded to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield, Virginia 22150, for verification of the incident or incidents which the appellant reports he re-experiences. Additionally, we note that the appellant's unit listed on his discharge papers was "3780th QM TRK CO" and the ESG should be requested to provide any information regarding whether this unit or any other unit designated by the appellant was in combat during the period from December 1943 until April 1946. Any information obtained is to be associated with the claims folder. 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 a stressor or stressors in service, and, if so, what was the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the cases of Zarycki and West, and the discussion above. In any event, the RO must specifically render a finding as to whether the appellant "engaged in combat with the enemy." The RO must determine whether the claimed stressor(s) are related to combat or not related to combat. If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor or stressors in service it has determined are 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 a stressor or stressors, then the RO should arrange for the veteran to be examined by a Board of two psychiatrists who have not previously examined him to determine the nature and severity of his psychiatric disorder. The RO must specify, for the examiners, the stressor or stressors that the RO has determined are established by the record. The examiners must be instructed that only those events may be considered for the purpose of determining whether the appellant was exposed to a stressor in service. Each psychiatrist should conduct a separate examination with consideration of the criteria for PTSD. If the examiners determine that the appellant has any psychiatric disorder in addition to PTSD, they should determine among themselves the relationship of any such disorders (including etiological origin and secondary causation) and specify which symptoms are associated with each disorder. 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 whether each alleged stressor found to be established for the record by the RO was sufficient to produce PTSD; whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and, whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established for the record by the RO and found to be sufficient to produce PTSD by the examiners. In addition, the examiner should be requested to indicate on the examination report the degree of functional impairment resulting from the psychiatric disorder, with consideration of the effect of the disorder on the appellant's ability to work or to seek work. The report of the examination should include a complete rationale for all opinions expressed. 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 PTSD are to be accomplished. The diagnosis should be in accordance with DSM-III. The entire claims folder and a copy of this Remand must be made available to and reviewed by the examiners prior to the examination. 7. The examiners should have all pertinent medical records available for review, and the results of prior examinations must be carefully coordinated so that a comprehensive assessment with respect to the impact of the appellant's combined disabilities may be ascertained. 8. The RO should process the claim in accordance with VA Adjudication Procedure Manual M21-1, Part VI, para. 7.46(e), (f), and 38 C.F.R. § 3.304(f) (1994). The RO should then review the record and ensure that all of the above actions are completed. When satisfied that the record is complete and that the psychiatric examinations are adequate for rating purposes, the RO should readjudicate the claim. After the above requested actions have been completed, the RO should review the appellant's claims with regard to the additional evidence obtained. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain addition evidence and to ensure due process of law. No opinion, either legal or factual, is intimated as to the merits of the appellant's claims by this REMAND. No additional action is required by the appellant until he receives further notification from the VA. JACK W. BLASINGAME 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) (1993). - 2 -