Citation NR: 9614838 Decision Date: 05/28/96 Archive Date: 06/11/96 DOCKET NO. 94-36 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel REMAND The veteran served on active duty from March 1968 to March 1971, with service in the Republic of Vietnam from August 1968 to August 1969. This appeal arises from a rating decision in November 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The record reflects that a rating decision in August 1982 denied entitlement to service connection for psychosis and post-traumatic stress neurosis. A rating decision in February 1989 denied entitlement to service connection for post-traumatic stress disorder (PTSD); evidence at that time included a statement by the veteran in July 1988 concerning alleged stressful incidents (stressors) which he had experienced in Vietnam. A rating decision in August 1990 denied entitlement to service connection for PTSD; evidence at that time included a statement by the veteran in July 1990 concerning alleged stressors. The rating decisions in August 1982, February 1989, and August 1990 considered the merits of the veteran's claim of entitlement to service connection for PTSD. The veteran did not file a timely substantive appeal to any of the decisions, which became final. A rating decision in November 1992 found that new and material evidence had not been submitted which would warrant reopening of the prior final disallowances of the claim, and the current appeal ensued. The United States Court of Veterans Appeals (the Court) has held that VA must review all of the evidence submitted by a claimant since the last final denial of the merits of the claim in order to determine whether a claim must be reopened and adjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523 (1994). In the veteran's case, as the rating decision of August 1990 was the last final denial of the merits of his claim, the additional evidence to be considered would be any evidence submitted since August 1990. However, the veteran's representative points out that the RO did not forward his July 1988 and July 1990 accounts of alleged stressors to the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the occurrence of the claimed stressors. The Court has held that, despite the prior final disallowance of a claim, when a veteran has alleged facts which, if substantiated, would result in a compensable claim, he is entitled, in accordance with 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159(a) and Murphy v. Derwinski, 1 Vet.App. 78 (1990), to have VA assist him in obtaining the putative evidence. White v. Derwinski, 1 Vet.App. 519, 521 (1991). In the veteran's case, in his July 1988 statement he described two alleged stressors during his service in Vietnam: (1) While he was on guard duty at Cu Chi there was an exchange of fire with the enemy; the next morning he and other service members found bodies of the attackers whom they had killed; one body was that of a Vietnamese girl that the veteran had had a relationship with; using his M-16 rifle, he "blew her head away;" (2) One day when he and others were being given instructions about driving troops in four-wheel drive vehicles, a boy about 10 years of age fired a machinegun at them; the veteran charged the boy and killed him by breaking his neck. In his July 1990 statement the veteran indicated that: (1) The incident in which his Vietnamese girl friend was killed occurred in May or June 1969 while he was serving with H & HQ Company, 2d Battalion, 34th Armored Brigade, 25th Infantry Division, United States Army, at Cu Chi. After the incident, he was ordered to see a psychiatrist; (2) In July 1969, while he was in the same unit at Tay Ninh City he was part of a convoy; a lieutenant began to get down from a tank; the veteran tried to stop him, but he charged the enemy; he set off a booby trapped 155-millimeter round which "tore him completely in half;" (3) In late July 1969, after the lieutenant's injury, he couldn't eat or sleep; someone falsely accused him of using drugs; he was taken to a service department hospital in Tay Ninh to see a psychiatrist; blood and urine tests showed that he was not using drugs; (4) In June 1969 his unit was located at Nuy Ba Dinh (Black Virgin Mountain); American B-52 bombers started dropping 750- pound bombs on their position; one tank "took a direct hit and was blown away;" his tank bounced "like a rubber ball;" (5) In March, April and May 1969 the second battalion, 34th Armored Brigade was attached to the 27th Infantry Division (Wolfhounds). In and around Cu Chi, gasoline-powered vehicles, which had been designed for use in the Arctic were being used; he was one of the drivers; the vehicles were "death traps;" several vehicles were lost in combat, and the drivers were killed. In a statement received in February 1994, the veteran said that, in addition to an award from the Government of the Republic of Vietnam of the Vietnamese Cross of Gallantry, which is a unit citation shown on his Form DD 214, in the latter part of 1968 he received an individual citation from President Johnson for his participation in the Battle of Hue. At a personal hearing in September 1994 the veteran testified that: The lieutenant whose injury he witnessed was named, he thought, [redacted]; after service Mr. [redacted] received artificial limbs at the University of California and learned to walk again; the veteran was under the impression that Mr. [redacted] had changed his name in postservice years. Applicable regulations provide that service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that claimed inservice stressors actually occurred and a link, established by medical evidence, between current symptomatology and a claimed inservice stressor. 38 C.F.R. § 3.304(f) (1995). The record discloses that the veteran has carried a diagnosis of PTSD since hospitalization at a VA medical center from February to April 1988. In a report received in October 1992, a VA psychiatrist stated that he had treated the veteran since 1989 for chronic PTSD symptoms related to his Vietnam experiences. During VA hospitalization from October 1993 to December 1993 diagnoses included bipolar disorder, manic phase, and PTSD. It should be noted, however, that an examination based on a questionable history is inadequate for rating purposes. West v. Brown, 7 Vet.App. 70, 77-8 (1994). The basis for the denial of the veteran's claim of entitlement to service connection for PTSD has been the lack of credible supporting evidence that any of the claimed inservice stressors actually occurred. The veteran had not submitted any "buddy statements" by fellow service members. His representative, however, has requested that an attempt be made to verify his alleged stressors by contact with the ESG. The provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of PTSD service connection claims provides that "where records available to the rating board do not provide objective or supportive evidence of the alleged inservice traumatic stressor, it is necessary to develop this evidence." Manual M21-1, part VI, 7.46(f)(2). The Board accedes to the veteran's representative's request and finds that an attempt to verify the veteran's alleged stressors is mandated by VA's duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); White; Manual M21-1, part VI, 7.46(f)(2). Accordingly, this case is remanded to the RO for the following: 1. The RO should contact the United States Army and request information as to whether, during his period of active service, the veteran received any individual citations for valor. 2. The RO should forward a copy of this REMAND, copy of the veteran's personnel record, and copies of his July 1988 and July 1990 statements to the United States Army and Joint Services Environmental Support Group (ESG), Building 5089, Stop #387, Fort Belvoir, Virginia 22060, in an attempt to verify any claimed stressor which may have occurred during active duty. The ESG should be requested to explore alternative spellings of the name of [redacted] when searching their records. Any information obtained is to be associated with the claims file. 3. Following receipt of the ESG's report and the completion of any additional development warranted or suggested by the agency, the RO should prepare a report detailing the nature of any combat action or inservice stressful event verified by the ESG. If no combat stressor has been verified, the RO should so state in its report. The report is to be added to the claims file. In the event that the Army reports that the veteran did not receive an individual citation for valor and the ESG does not verify any claimed stressors, no further development should be undertaken. 4. In the event that the veteran received an individual citation for valor or the ESG verified a stressor, then the RO should arrange for the veteran to be seen by a VA psychologist, who should conduct appropriate diagnostic studies, including the Minnesota Multiphasic Personality Inventory evaluation, with PTSD sub scale testing, to determine the nature and extent of any psychiatric disability which may be present. The veteran should be scheduled for any further indicated psychological testing. 5. Then, and only then, should the RO schedule the veteran for a VA psychiatric examination. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician's Guide for Disability Evaluation Examinations and all appropriate studies, including PTSD sub scales, are to be performed. The claims file must be made available to and reviewed by the examiners prior to the examinations. In determining whether or not the veteran has PTSD due to an inservice stressor, the examiner is hereby notified that only the verified history detailed in the reports for the Army and/or the ESG and/or the RO may be relied upon. Any and all opinions expressed must be accompanied by a complete rationale. If the examining psychiatrist's diagnosis differs from the diagnosis rendered by the examining psychologist, the examiners must reconcile the differing diagnoses. The psychiatrist must decide a Global Assessment of Functioning score which is consistent with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, and explain what the assigned score means. The examination report should be typed. 6. Following completion of the foregoing, the RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the VA psychiatric examination report to verify that any diagnosis of PTSD was based on a verified history. If the examiner relied upon a history which was not verified, the examination report must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of PTSD, related to service, based on examination which relied upon an unverified history, is inadequate. West, 7 Vet.App. at 77. 7. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for PTSD. If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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) (1995). - 2 -