Citation NR: 9636880 Decision Date: 12/31/96 Archive Date: 01/06/97 DOCKET NO. 94-05 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran served on active duty from July 1961 to February 1968. In October 1982, the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. denied the veteran’s claim for service connection for PTSD. There is no evidence of record indicating that the veteran was notified of this decision. The case was subsequently transferred to the RO in New Orleans, Louisiana. The veteran again claimed entitlement to service connection for PTSD in January 1989. In November 1989, the RO in New Orleans, Louisiana denied entitlement to service connection for PTSD, apparently on the grounds that new and material evidence had not been submitted. The veteran was notified of this decision in that same month. This appeal arises from a July 1993 rating decision of the RO in New Orleans, Louisiana that denied the veteran’s claim for service connection for PTSD on the merits. REMAND The veteran contends that the RO committed error in denying his claim for service connection for PTSD. The Board notes first that the issue in this case is not entitlement to service connection for PTSD but whether there is new and material evidence to reopen a finally denied claim for service connection for PTSD. As noted in the Introduction to this decision, a claim for service connection for PTSD was denied by the RO in a rating decision in November 1989. The veteran did not appeal that decision and it became final. 38 U.S.C.A. § 7105(c) (West 1991). Service connection for PTSD requires (1) medical evidence establishing a clear diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1995); see also Hayes v. Brown, 5 Vet.App. 60, 67 (1993). With regard to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran “engaged in combat with the enemy.” 38 U.S.C.A. § 1154(b) (West 1991); see also Gregory v. Brown, 8 Vet.App. 563 (1996); Collette v. Brown, 82 F.3d 389 (Fed.Cir. 1996). The United States Court of Veterans Appeals (Court) has held that “[w]here 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 ‘satisfactory,’ e.g., credible, and ‘consistent with the circumstances, conditions, or hardships of [combat] service.’” Zarycki v. Brown, 6 Vet.App. 91, 98 (1993). However, where VA determines from the evidence that the veteran did not engage in combat with the enemy or where the veteran, even if he did engage in combat, is claiming stressors not related to combat, his lay testimony alone is not enough to establish that the stressors actually occurred. West (Carleton) v. Brown, 7 Vet.App. 70, 76 (1994); see also, Zarycki, 6 Vet.App. at 98. The standard set forth in West and Zarycki, that in a noncombat situation “the record must contain service records which corroborate the veteran’s testimony as to the occurrence of the claimed stressor” (West, supra), differs somewhat from the standard that the Court had set forth in Doran v. Brown, 6 Vet.App. 283, 289 (1994). Doran held that the MANUAL M21-1 statement that the “[s]ervice records must support the assertion that the veteran was subjected to a stressor of sufficient gravity to evoke the symptoms in almost anyone” means that “those service records which are available must support, i.e., must not contradict, the veteran’s lay testimony concerning his non-combat related stressors.” Doran, 6 Vet.App. at 289. The Court also stated in Doran that “the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the [Board] of its obligations to assess the credibility and probative value of the other evidence.” Id. at 290-91. The MANUAL M21-1, as revised effective October 1995, provides that the required “credible supporting evidence” of a noncombat stressor “may be obtained from” service records or “other sources.” See Moreau v. Brown, No. 94-883 (U. S. Vet.App. September 12, 1996). This new version of M21-1 does not expressly state that a veteran’s testimony may not, by itself, constitute credible evidence of the actual occurrence of a stressor. However, since the issuance of the October 1995 M21-1 revision, the Court has held that the requirement in § 3.304(f) for “credible supporting evidence” means that “the appellant’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor.” Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996) (citing Doran, supra, (“if the claimed stressor is not combat-related, [the] appellant’s lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor”)). Although the revised MANUAL M21-1 states that proof of an in- service stressor may be obtained from sources other than service records, it does not set forth the type of proof that is required to show a noncombat stressor. The regulations governing service connection for PTSD differ from those governing service connection for other conditions because they require evidence of an in-service stressor rather than evidence of “incurrence or aggravation” of a disease or injury in service or within a post-service presumptive period. The Court’s caselaw allows a physician’s opinion of causal nexus, in certain circumstances, to establish in- service or presumptive-period incurrence or aggravation even when the examination on which the opinion was based was made many years after service. See e.g., ZN v. Brown, 6 Vet.App. 183 (1994). However, since the requirements in § 3.304(f) for a “link, established by medical evidence, between current symptomatology and the claimed inservice stressor” and for “credible supporting evidence that the claimed in[-]service stressor actually occurred,” indicate that something more than medical nexus is required, the Court recently held in Moreau, supra, that “credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence.” In addition to requiring that an alleged stressful event be corroborated, the law requires that a stressful event be of sufficient gravity or severity to warrant service connection for PTSD. The revised MANUAL M21-1 provides that the essential diagnostic criteria for PTSD, as established by the Diagnostic and Statistical Manual of Mental Disorders-III-R (3rd ed. 1987) (DSM-III-R), requires that the “[t]he person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone; e.g., serious threat to one’s life or physical integrity; serious threat or harm to one’s children, spouse, or other close relatives and friends; sudden destruction of one’s home or community; or seeing another person seriously injured or killed as the result of an accident or physical violence.” Although this legal requirement may sometimes be at odds with the medical findings of an individual physician, the Board may disregard such medical findings if it determines on a factual basis that the alleged event (or series of events) is not of sufficient gravity or severity to qualify as a stressor. West, 7 Vet.App. 70, 78-79 (1994) (noting that a significant diagnostic feature of PTSD requires that the sufficiency of the stressor be clinically established but not holding that this matter is purely a medical question in every case); Wilson v. Derwinski, 2 Vet.App. 614, 616-18 (1992) (affirming a Board decision which noted that whether an alleged event is a stressor is a question of fact for the Board to decide involving factors as much historical as psychological); see also Swann v. Brown, 5 Vet.App. 229 (1993) (holding that veteran’s descriptions of experiences in service “are not beyond the ordinary, i.e., they would not, in and of themselves, evoke symptoms in ‘almost everyone.’”); and, Wood v. Derwinski, 1 Vet.App. 190 (1991) (noting that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences). In this case, the Board concludes that more development of the evidence is necessary before a decision on the veteran’s claim can be made. The evidence of record does not provide adequate and objective determinations concerning stressors reportedly experienced by the veteran in Vietnam. Review of the claims file reveals that the veteran’s hearing testimony, as well as a number of personal statements submitted in conjunction with his claim, describe alleged stressor events. However, the record does not reflect that the information supplied by the veteran was provided to the United States Army and Joint Service Environmental Support Group (ESG) in an effort to corroborate his alleged “stressor” events. Thus, the Board concludes that an ESG inquiry is required in order to properly adjudicate this claim. See 38 U.S.C.A. § 5103 (West 1991); Graves v. Brown, 8 Vet.App. 522 (1996). In conjunction with this development, the veteran should be provided another opportunity to submit more detailed information concerning the above-cited alleged stressor incidents (first and last names of fellow servicemen involved, approximate dates of alleged events, duty and unit assignments at time of alleged events, etc.). The Board also notes that the veteran was not provided with notice of all the pertinent laws and regulations that apply to his claim in the January 1994 Statement of the Case or in the June 1995 and May 1996 Supplemental Statements of the Case. For example, no citation to 38 C.F.R. § 3.304(f) was included. In addition, as noted above, relevant portions of the VA ADJUDICATION PROCEDURE MANUAL M21-1 have been updated during the pendency of this appeal. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part VI, 7.46 (Oct. 11, 1995); Marcoux v. Brown, 9 Vet.App. 289, 292; Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should provide the veteran with the opportunity to submit specific and detailed information regarding his reported stressor events related to his tour of duty in Vietnam from December 1965 to December 1966. The veteran should be asked to provide specific details of the claimed stressful events during service, such as dates, places, detailed descriptions of the events, duty assignments and the names and other identifying information concerning any individuals involved in the events. He should also be advised to submit any verifying information that he can regarding the stressors he claims to have experienced in service. He may submit statements from fellow service members or others who witnessed or knew of the alleged events at the time of their occurrence. The veteran should be told that the information is necessary to obtain supportive evidence of the stressful events and that failure to respond may result in adverse action. 2. Regardless of the veteran’s response, 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 (ESG), 7798 Cissna Road, Springfield, VA 22150. See VA MANUAL M21- 1, Part VI, Paragraph 7.46. They should be requested to provide any information which might corroborate the veteran’s alleged stressors. If the ESG is unable to provide the specific information requested, they should be asked to direct the RO to the appropriate sources. 3. Following the above, the RO must make a specific determination, based upon the complete record, as to whether the veteran did experience the alleged stressors and determine whether the evidence is sufficient to establish the occurrence of the stressors. 4. After having completed the above development of the evidence and any additional development that the RO deems necessary, including additional psychiatric evaluation, the RO should review the file and determine whether the claim has been reopened since the November 1989 RO decision. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1995); See Evans v. Brown, 9 Vet.App. 273 (1996); Moreau v. Brown, No. 94-883 (U.S. Vet. App. Sept. 12, 1996); VA ADJUDICATION PROCEDURE MANUAL M21-1, Part VI, 7.46 (Oct. 11, 1995). The appellant is free to furnish additional evidence while his case is in remand status. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). Following completion of these actions and, if the decision remains unfavorable, the appellant and his representative, if any, should be provided with a Supplemental Statement of the Case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the appellant until further notice is issued. JAMES W. ENGLE Acting 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 -