Citation NR: 9716161 Decision Date: 05/12/97 Archive Date: 05/22/97 DOCKET NO. 95-10 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service-connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. S. Hughes, Associate Counsel INTRODUCTION The veteran served on active duty from April 1970 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the appellant’s claim seeking service-connection for post-traumatic stress disorder (PTSD). REMAND The veteran served in the Republic of Vietnam from February 1970 to December 1971. His listed military occupational specialty was a telephone switchboard operator. The veteran contends that the RO erred in denying service- connection for PTSD. He claims that his present psychiatric illness was incurred during his military service in the Republic of Vietnam. During his February 1994 VA psychiatric examination, the veteran reported that his psychiatric disorder is manifested by interrupted sleep, nightmares, mood swings, depression, aggressive behavior, and suicidal ideations. Examination of the claims file indicates that, although the veteran submitted various statements regarding his psychiatric disorder and his experiences during military service. The veteran carries a diagnosis of PTSD, however, the RO has not accepted his statements as indicative of stressors. The Board further notes that during the pendency of this appeal, VA issued revised regulations amending the section of the VA Schedule for Rating Disabilities on Mental Disorders. See 61 Fed.Reg. 52695-52702 (1996) (to be codified at 38 C.F.R. § 4.130). In view of the intended effect of this action to ensure that the rating schedule uses current medical terminology, unambiguous criteria, and that it reflects medical advances which have occurred since the last review, and in an effort to extend to the veteran every equitable consideration, the Board believes that the veteran’s claim should be evaluated pursuant to the revised regulations, and that the veteran be afforded a VA psychiatric examination. 38 C.F.R. § 3.655 addresses the consequences of the veteran’s failure to attend a scheduled medical examination. During his March 1997 hearing before the undersigned, the appellant testified that during his tour in Vietnam, he was bitten on the toe by a snake, and that this episode almost cost him his life. Service medical records verify this event. However, there is no medical determination regarding whether this constitutes a stressor. During his hearing, the veteran also testified that he was never fired upon in Vietnam, and while he experienced mortar attacks, he never lost friends to those attacks. The RO has not referred the stressor information provided by the veteran to the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the claimed stressors. However, the Board acknowledges that the information provided by the veteran may not be as complete as the ESG will need to verify the existence of the veteran’s claimed stressors. Nevertheless, the provisions of the VA adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of post-traumatic stress disorder provide that, “where records available to the rating board do not provide objective or supportive evidence of the alleged in- service traumatic stressor, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2). Accordingly, as the development outlined in M21-1 includes providing the information submitted by the veteran to the ESG, such development is mandatory. 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. 38 C.F.R. § 3.304(f). In addition, the Court of Veterans Appeals (the Court) has articulated that, in addressing claims for service connection for PTSD, consideration must first be given to the evidence required to demonstrate the existence of an alleged stressful event, and then, if such stressor is found, a determination as to whether the stressful event is of the quality required to support the diagnosis of PTSD must be made. Zarycki v. Brown 6 Vet. App. 91 (1993). 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.” 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 Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f). If the claimed stressor is unrelated to combat, the veteran’s lay testimony is insufficient to establish the occurrence of the stressor and must be corroborated by credible supporting evidence. Recently, the Court held that there is no requirement that such corroboration must be found in the service records. However, the credible supporting evidence cannot consist solely of after-the fact- medical nexus evidence. See Moreau v. Brown, No. 94-883 (U.S. Vet.App. Sept. 12, 1996); Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996). 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. The claimed stressor must be one which is “outside the range of usual human experience” and “would be markedly distressing to almost anyone”. VA Adjudication Procedure Manual M21-1, Part VI, 7.46(a)(1) (Oct. 11, 1995). Those experiences which are described as being markedly distressing to almost anyone include serious threat to one’s life or physical integrity or seeing another person seriously injured or killed as the result of an accident or physical violence. Id. The Court has 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. West v. Brown, 7 Vet.App. 70 (1994). The claims file contains a statement from R.B., Ph.D., CAC II., NCC, at Centennial Healthcare Plaza, in which Dr. R.B. reports that, during the course of treatment, the veteran exhibited symptoms which indicated that he was suffering from PTSD. The Board notes that the records associated with this treatment are not contained in the claims folder and there is no evidence to indicate that the RO attempted to obtain such evidence. Copies of such records must be requested from the appropriate source and incorporated with the claims file for review. To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he identify the sources of all treatment, both VA and non-VA, for his psychiatric disability from 1973 to the present. After obtaining any necessary authorization, the RO should request and associate with the claims file copies of the appellant’s complete treatment reports from all sources identified. The attention of the RO is specifically directed to medical records from Dr. R.B. and Centennial Healthcare Plaza. 2. The RO should request from the veteran a statement containing as much detail as possible regarding any and all stressful events to which he was exposed in service. He should be asked to provide specific details of the claimed stressful events to the best of his ability. The statement should include dates, places, detailed descriptions, units of service, duty assignments, as well as the names, units of assignments and any other identifying information concerning other individuals involved in the events. In this respect, the Board takes this opportunity to inform the veteran that the United States Court of Veterans Appeals has held that asking the veteran to provide the underlying facts, i.e., the names of the individuals involved, the dates, and the places where the claimed events occurred, does not constitute an impossible or an onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). 3. After obtaining the foregoing requested information from the appellant, the RO should forward it and a copy of his record of service, DD Form 214, for April 1970 to September 1973 to the United States Army and Joint Services Environmental Support Group (ESG), 77 98 Cissna Road, Suite 1, Springfield, Virginia 22150, in an attempt to verify any claimed stressor. Any information obtained is to be associated with the claims folder. 4. Following receipt of the ESG’s report, and the completion of any additional development suggested by that agency, the RO should prepare a report detailing the nature of any combat action, or in service stressful event, verified by the ESG, NPRC, or other appropriate service department. If no combat stressor has been verified, the RO should so state in its report. This report is then to be added to the claims folder. 5. After completion of the above development, the RO should schedule the veteran for a psychiatric examination by a board of two VA psychiatrists who have not previously seen or treated him. 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 completing their examinations. In determining whether or not the veteran has PTSD due to an inservice stressor, the examiners are hereby notified that only the verified history detailed in the reports provided by the ESG, NPRC, the service department and/or the RO may be relied upon. Specifically, the examiners are to determine whether the snake bite incident can be considered a stressor for the purposes of the diagnosis of PTSD. If the examiners believe that PTSD is the appropriate diagnosis, they must specifically identify which stressor(s) detailed in the ESG, NPRC, other appropriate service department, and/or RO’s report is/are responsible for that conclusion. All opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning Score (GAF) which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, DSM IV, and explain what the assigned score means. 6. Following completion of the foregoing, the RO should review the claims file to ensure that all of the requested development has been completed in full. In particular, the RO should review the psychiatric examination report to verify that any diagnosis of PTSD was based on the verified history provided by the ESG, NPRC, other appropriate service department, and/or RO. If the examiners relied upon a history which was not verified, that 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 an examination which relied upon an unverified history is inadequate. West v. Brown, 7 Vet.App. 70, 77 (1994). Prior to the examination, the RO must inform the veteran, in writing, of all consequences of his failure to report for the examination in order that he may make an informed decision regarding his participation in said examination. 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. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ____________________________ RENÉE M. PELLETIER Member, Board of Veterans’ Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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) (1996). - 2 -