Citation NR: 9717948 Decision Date: 05/23/97 Archive Date: 06/03/97 DOCKET NO. 95-40 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to a compensable evaluation for residuals of a fracture of the lower left fibula. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Fussell, Counsel REMAND The veteran had active service from October 1966 to September 1969. This matter comes before the Board of Veteran's Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The veteran’s claim folder has been rebuilt. The veteran’s VA Form 9 indicates that he did not wish to appear at a hearing before a traveling member of the Board. While he did not check the box indicating a desire for such a hearing at the RO, he did make a mark next to the box. No further reference has been made as to whether such a hearing is desired but it remains unclear whether he actually desires a hearing at the RO. This matter should be clarified upon remand to the RO. Service personnel records reflect that during service in Vietnam from February 1967 to February 1968 the veteran’s military occupational specialties (MOS’s) were supply clerk and construction machine operator with the 226th Supply and Service Company. He has related a change in his behavior since serving in Vietnam. While he reports having been given medication for nightmares while in Vietnam, this is not corroborated by service clinical records which reflect complaints of frequent or terrifying nightmares in medical history questionnaires at service entrance and discharge but are otherwise negative for psychiatric disability. The service discharge questionnaire does reflect that he related having nightmares while in Vietnam. The veteran has related stressors of having been subjected to enemy sniper fire in combat while with the 226th Supply and Service Company on convoy duty along pipelines between Vung Ro Bay and Tuy Hoa Air Base in February 1968 when two service comrades were killed. Also, he witnessed the death of a service comrade who was killed in January 1968 when another solider, also with the 226th, was cleaning his rifle. He can not recall the names of any of the deceased service comrades. His unit was also subjected to occasional rocket and mortar attacks in July 1967 as well as January and February 1968. On one occasion, of an unspecified date, he participated in placing bodies in body bags. On other occasions, also of unspecified dates, he witnessed mistreatment of enemy prisoners and was on guard duty when his base was subjected to a sapper attack. VA outpatient treatment (VAOPT) records of 1994 and 1995 reflect diagnoses of PTSD. The adequacy of a VA psychiatric examination in June 1995 is questioned because (1) it was purportedly of short duration; and (2) the examiner did not consider the effects that psychotropic medication had upon the veteran in reaching his diagnosis. VA psychological testing was done which yielded a score “well above the suggested clinical cut-off for PTSD.” The diagnosis was that the veteran did not have PTSD but other diagnoses included “anxiety disorder, not otherwise specified, with notable symptoms of a combat-related anxiety syndrome.” Accordingly, diagnostic clarification is deemed to be necessary. The report of the psychiatric examination indicates that the veteran has not had psychiatric treatment prior to VAOPT in 1994 but he reported in an attachment to his February 1995 stressor letter that in June 1982 he had had difficulty breathing due to anxiety and stress. Private clinical records from 1979 to 1982 confirmed that he was seen at that time for a complaint of difficulty breathing and that a “Dr. Sassu’s” office had been notified. Also, the veteran related having been given Xanax by a family physician and in February 1995 Roger Grimball, M.D. reported that he had prescribed medication, including Xanax, for “stress related anxiety which may have contributed to [the veteran’s] Coronary Artery Disease.” The Board notes that records of Drs. Sassu and Grimball are not on file. In view of their potential relevance with respect to the veteran’s claim, efforts should be undertaken to obtain these records. The is no evidence that the veteran was awarded combat citations or other awards or decorations appropriate to his branch of service denoting participation in combat with the enemy. Other than the appellant's own statements there is no evidence regarding the claimed inservice stressors in the claims file, nor is there any evidence that the RO attempted to verify the appellant's claimed stressors through the United States Army and Joint Services Environmental Support Group (ESG). In light of the statutory duty to assist the veteran, the RO should attempt to verify his claimed inservice stressors. Service connection for PTSD requires the presence of three elements: (1) a current, clear diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptoms and the specific claimed in-service stressor. Moreau v. Brown, 9 Vet.App. 389, 394-95 (1996). Although 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304(d) (1996) do not establish service connection for a particular disability of a combat veteran and do not establish a basis to link etiologically the inservice condition to a current condition, they relax the evidentiary requirements for determining what happened in service and may, thus, provide a factual basis allowing for a determination that a disease or injury was incurred or aggravated in combat. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir. 1996); Libertine v. Brown, 9 Vet.App. 521, 524 (1996); and Caluza v. Brown, 7 Vet.App. 498, 507 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir. 1996). At to the first element for service connection for PTSD, a “clear diagnosis” should be an “unequivocal” one under the appropriate DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM). DSM-III was revised in 1987 (DSM-III-R) and the fourth edition was issued in 1994 (DSM-IV). Cohen v. Brown, No. 94-661, slip op. at 14 and 15 (U.S. Vet. App. March 7, 1997). The DSM sets forth criteria as to the sufficiency of stressor(s) and adequacy of symptomatology for a clear diagnosis of PTSD which are not contained in 38 C.F.R. § 3.304(f). Therefore, a clear (unequivocal) PTSD diagnosis by a mental-health professional will, unless shown by evidence to the contrary, be presumed to be in accord with DSM criteria as to sufficiency of stressor(s) and adequacy of symptomatology. Only when there is a medical opinion as to the first (clear diagnosis) and third (nexus of current symptoms to in-service stressor(s)) PTSD elements do the DSM criteria come directly into play for VA adjudication. If not in apparent accord with DSM criteria (as to symptom adequacy and stressor requisites) clarification by examination or record review is mandatory. See revised 38 C.F.R. §§ 4.125 and 4.126; and M21-1, part VI, para. 7.46(e) (1995) and M21- 1, Subch. XII, para. 50.45(c) (1989), VA O.G.C. Prec. Op. No. 10-95. Cohen, slip op. at 16. There are significant differences between DSM-III-R and DSM IV as to PTSD stressors. The DSM-III-R criteria for PTSD (incorporated into M21-1) required that a stressor be outside the range of usual human experience and be markedly distressing to almost anyone. However, DSM-IV requires only that a stressor invoke a sense of intense fear, helplessness or horror in a particular person. Thus, DSM-IV criteria no longer are based solely on the usual experience and response of people in general but are individualized (geared to the specific person’s actual experience and response). Thus, a predisposition or hypersensitivity is irrelevant. Cohen, slip op. at 18-19. Moreover, M21-1 provides that “[a] stressor is not to be limited to just one single episode. A group of experiences also may affect an individual, leading to a diagnosis of PTSD. M21-1, Part VI, para. 7.46(b)(2) (1995) and M21-1, Subch. XII, para. 50.45(f)(2) (1989). Cohen, slip op. at 19. If the claimed stressor is combat related, a medical opinion based on a postservice examination of a veteran may not be the “credible supporting evidence” necessary to corroborated in-service occurrence. Moreau v. Brown, 9 Vet.App. at 395- 96. 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, which is an essential prerequisite to support a diagnosis of PTSD. The Court analysis divides into two major components: The first component involves the evidence required to demonstrate the existence of an alleged stressful event; the second involves a determination as to whether the stressful event is of the quality required to support a diagnosis of PTSD. With regard to the first component of the Court analysis in Zarycki, the evidence to establish a recognizable inservice stressor will vary depending on whether the veteran “engaged in combat with the enemy.” See also Hayes v. Brown, 5 Vet.App. 60 (1993). Whether or not a veteran “engaged in combat with the enemy” must be determined through recognized military citations or other service department evidence. In other words, mere assertions by a veteran that he “engaged in combat with the enemy” are insufficient, by themselves, to establish the fact. The record must first contain recognized military citation or other supportive evidence to establish that he “engaged in combat with the enemy.” If the determination with respect to the step is affirmative, then (and only then), the second step requires that the veteran’s lay testimony regarding claimed stressor or stressors must be accepted as conclusive as to their actual occurrence and no further development or corroborative evidence will be requires, provided that the veteran’s testimony or statements are found to be “satisfactory,” e.g., credible, and “consistent with the circumstances, condition, or hardships of such service.” Zarycki at 98. With regard to the second component of the Court analysis, in West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated on the analysis in Zarycki. In Zarycki, id., at 98-99, it was held that the facts must also establish that the alleged stressful event was sufficient to give rise to PTSD and in West, id., at 79, it was held that the sufficiency of the stressor, as opposed to the existence of a stressor, is a medical determination requiring independent medical evidence prior to adjudication. It was also held in West, id., at 77- 78, that a psychiatric examination for the purpose of establishing the existence of PTSD was inadequate because the examiners had relied, in part, on events whose existence the Board had rejected. From the foregoing, the question of the existence of a recognizable stressor must be resolved by adjudicatory personnel. If the adjudicators conclude that such a stressor in fact exists, then and only then, the case should be referred for a medical examination to determine the sufficiently of the stressor and whether the remaining elements required to support the diagnosis of PTSD 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 alleged stressor or stressors during service is not established by the record, a medical examination would be pointless. Likewise, if the examiners render a diagnosis of PTSD that is not clearly based upon stressors during service whose existence the adjudicators have accepted, the examination would be inadequate. If upon remand the RO is unsuccessful in developing evidence to show that the veteran engaged in combat with the enemy, the RO must inform the veteran that he is required to submit "other credible supporting evidence," such as the statements of fellow service members who witnessed the stressful events that the veteran alleges he experienced in service. 38 C.F.R. § 3.304(f) (1995); Doran, 6 Vet.App. at 289. Additionally, the adequacy of the VA orthopedic rating examination in 1995 is challenged, especially with respect to an absence of findings as to the impact of pain upon function of the veteran’s left lower extremity. In view of the paucity of clinical findings referable to the veteran’s left lower extremity, e.g., range of motion in degrees of the left knee and ankle as well as the effect of pain on motion, the veteran should be afforded a comprehensive VA orthopedic examination, together with X-ray studies of the left fibula. Accordingly, the case is remanded for the following actions: 1. The RO should contact the veteran and clarify whether he desires to testify at a hearing at the RO in support of his claims. If his response is affirmative, a hearing should be scheduled. 2. The RO should contact the veteran have him provide the full, current address of Dr. Sassu. He should also be requested to executed and return the necessary authorization form to obtain all relevant records of treatment, evaluation, hospitalization or observation of the veteran. If these records are obtained they should be associated with the claim file. 3. The RO should contact the veteran have him execute and return the necessary authorization form to obtain all relevant records from Dr. Grimball of treatment, evaluation, hospitalization or observation of the veteran. If these records are obtained they should be associated with the claim file. 4. The RO should review the file and prepare a summary of all of the claimed stressors already reported by the appellant in previous statements and to examining health care professionals. This summary and all associated documents, including his service personnel records, should be sent to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Suite 101, Springfield, VA 22150-3197. The ESG should be requested to provide any information available which might corroborate the appellant's alleged stressors. 5. The RO must make a specific determination, based upon the complete record, as to whether the appellant "engaged in combat with the enemy." If so, the RO should accept the appellant's lay testimony -- in the absence of evidence to the contrary and as long as it is "satisfactory" (i.e., credible) and consistent with the circumstances of service -- as conclusive evidence of the occurrence of the stressor. (Whether the stressor was sufficiently grave or severe to cause PTSD is another question which must be resolved later). In determining whether the appellant "engaged in combat with the enemy," the RO should consider all credible supporting evidence which has been developed. 6. Thereafter, the RO should list the stressors, if appropriate, and schedule the appellant for an examination by a VA psychiatrist to determine the nature and extent of any psychiatric disorder present; specifically to determine whether PTSD is present, and if so, whether it is linked to the appellant’s inservice stressor(s). In light of the diagnosis on psychiatric examination in 1995 of “anxiety disorder [] with notable symptoms of a combat-related syndrome,” it should also be determined whether there is any other psychiatric disorder present that is related to any in-service event or occurrence. The entire claims folder must be made available to and reviewed by the examiner prior to the examination. The examination report should include a detailed account of all psychiatric pathology found to be present. The examination report should reflect review of pertinent material in the claims folder. The examiner should integrate the previous psychiatric findings and diagnoses with the current findings to obtain a true picture of the nature of the appellant's psychiatric status. If there are different psychiatric disorders other than PTSD, the examiner should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). The psychiatrist should conduct the examination with consideration of the criteria for PTSD. The RO must specify for the examiner the stressor or stressors that the RO determines are established by the record, if any, and the examiner 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. If a diagnosis of PTSD is appropriate, the examiner should specify the credible "stressors" that caused the disorder and the evidence relied upon to establish the existence of the stressor(s). The examiner should also describe which stressor(s) the appellant re-experiences and how he re-experiences them. All necessary special studies or tests including psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory (MMPI) and the Mississippi Scale for Combat- Related PTSD are to be accomplished if deemed necessary. If there are no stressors sufficient to cause PTSD, or if PTSD is not found, that matter should also be specifically set forth. The examiner should identify the information on which the opinion is based. The opinion should adequately summarize the relevant history and clinical findings, and provide detailed explanations as to all medical conclusions rendered. The opinion should also allocate the appellant’s various symptoms and manifestations to the appropriate diagnostic entity. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by the examiner. 7. The veteran should be afforded a VA orthopedic examination to determine the extent and severity of any residuals of a fracture of the veteran’s lower left fibula. The claims file should be made available to the examiner prior to the examination. All indicated tests and studies should be completed, to include a detailed X-ray study, and the findings then reported in detail. The examiner should review the results of the X-ray study prior to completion of the examination report. Special attention should be given to the presence or absence of pain, stating at what point in the range of motion any pain occurs and at what point pain prohibits further motion. The examiner should describe any limitation of motion, instability and weakness, lack of normal endurance, functional loss due to pain, pain on use, weakened movement, excess fatigability, and incoordination. The examiner should express these factors in terms of additional limitation of motion, if possible. The examiner must obtain active and passive range of motion (in degrees), state if there is any limitation of function and describe it, and state the normal range of motion. The examiner should provide complete rationale for all conclusions reached. All positive and negative findings must be recorded with respect to relevant symptoms, including pain. 8. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the reports do not include all test reports, special studies or fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1996). "If the [examination] report does not contain sufficient detail it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." Green v. Derwinski, 1. Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 9. The RO should readjudicate the appellant’s claim for service connection for PTSD. The provisions of 38 C.F.R. § 3.304(f) (1996) should be considered. The RO should readjudicate the appellant’s claim for a compensable evaluation for residuals of a fracture of the lower left fibula. The decision should also address 38 C.F.R. §§ 4.40, 4.45 (1996). It is requested that the RO indicate in the rating decision and Supplemental Statement of the Case (SSOC) whether the case should or should not be submitted to central office for consideration of an extraschedular evaluation of the residuals of a fracture of the veteran’s lower left fibula. 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. While this case is in remand status, the veteran and representative are free to submit additional evidence and argument on the questions at issue. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of an SSOC. It is requested that this document specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. JAMES W. ENGLE Acting 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 -