Citation NR: 9720231 Decision Date: 06/10/97 Archive Date: 06/19/97 DOCKET NO. 93-10 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Marcy L. Rogoff, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to September 1968. This appeal arises from a September 1992 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). In that decision, service connection for PTSD was denied. The Board, in January 1995, remanded the case to the RO for additional development, including a request for more detailed information concerning the veteran’s claimed stressors. In his May 1997 statement to the Board on behalf of the veteran, the representative made references to service connection for a back disorder, and questioned the propriety of the RO’s prior denial in this regard. This issue has been neither procedurally prepared nor certified for appellate review and is referred to the RO for appropriate action. REMAND As a preliminary matter, the Board notes that a recent case from the United States Court of Veterans Appeals (Court), Cohen v. Brown, No. 94-661 (U.S. Vet.App. Mar. 7, 1997), alters the analysis in connection with claims for service connection for PTSD. Significantly, the Court points out that VA has adopted the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in amending 38 C.F.R. §§ 4.125 & 4.126. See 61 Fed.Reg. 52695-52702 (1996). VA is also guided by the provisions of VA Adjudication Procedure Manual M21-1 (Manual M21-1) which refer to the third revised edition of the DSM. See e.g., Manual M21-1, Part VI, 11.38 (1996) (same PTSD criteria as DSM-III-R). The Court took judicial notice of the effect of the shift in diagnostic criteria. The major effect is this: the criteria have changed from an objective (“would evoke...in almost anyone”) standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard. The criteria now require exposure to a traumatic event and response involving intense fear, helplessness, or horror. A more susceptible individual may have PTSD based on exposure to a stressor that would not necessarily have the same effect on “almost everyone.” The sufficiency of a stressor is accordingly, now a clinical determination for the examining mental health professional. Cohen v. Brown, slip op. at 38-39 (Nebeker, Chief Judge, concurring by way of synopsis). The court has also noted that where “there has been an ‘unequivocal’ diagnosis of PTSD by mental health professionals, the adjudicators must presume that the diagnosis was made in accordance with the applicable DSM criteria as to both adequacy of symptomatology and sufficiency of the stressor (or stressors).” Id, at 39. The Court went on to indicate that when the RO or the Board believes the report is not in accord with applicable DSM criteria, the report must be returned for a further report. It appears to the Board that the regulatory amendments to 38 C.F.R. §§ 4.125 & 4.126, and the incorporation of DSM-IV, will have a potentially liberalizing effect in adjudicating claims for service connection for PTSD, particularly when an individual is not a combat veteran or who is not shown to have “engaged in combat with the enemy. Where the law or regulations change while a case is pending, the version more favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet.App. 308, 312-313 (1991). As such, the Board believes that further development in this case is necessary. The Board notes that the veteran was diagnosed with PTSD related to his military service by a VA doctor in May 1992. During this appeal, the veteran has described several incidents that he claims are the stressors precipitating PTSD. In a statement dated in September 1992, the veteran reported that, while stationed with the 20th Engineering Brigade at the 547th Map Depot, he worked in supplies until he hurt his back and was assigned to the suicide tower. He reported that after being in Vietnam for several weeks, the 547th Map Depot was hit with mortars, rockets, and machine gun fire during the Tet Offensive. In a statement dated in May 1992, he reported that he saw many GI's die during this time, but is unable to remember their names because he was new to the company. In his September 1992 statement, the veteran related that, following the Tet Offensive, he worked to clean up Highway One by picking up the dead bodies of "N.V.A. and Cong." In February 1993, he reported that the skin on these bodies was burned and separated from the bodies as he loaded them onto a truck. The veteran also reported witnessing another soldier smash in the head and face of a young child and that brain matter splattered onto his person. Although previously remanded, a review of the record indicates that pertinent development remains to be accomplished. In fact, the veteran’s representative has requested that the veteran’s claim be returned to the RO for further verification by the United States Army and Joint Services Environmental Support Group (ESG). The RO’s first attempt to obtain verification of the veteran’s alleged stressors included a VA Form 21-4138, the veteran’s DD Form 214 and a letter from the veteran. The Board notes that in March 1993, the ESG responded to the RO's request for verification by stating that they were unable to document the veteran's unit of assignment, or his duties and responsibilities during his tour in Vietnam. It was stated that any future research request should include the veteran's DA Form 20. It was also requested that the veteran provide the date of the specific combat incident(s) to within seven days, type and location, numbers and full names of casualties, and other units involved. It was noted that the more detailed the information provided, the better chance that the research would be successful. Additional recommendations were provided on how the veteran and his representative could find morning reports. It was noted that the ESG PTSD unit could only verify specific combat incidents as recalled by the veteran. In order to conduct a meaningful research, the veteran must provide the "who, what, where and when" of each stressor. The ESG advised that the Morning Reports (MR’s), DA Form 1, which could be used to verify daily personnel actions such as wounded in action, killed in action, missing in action, or transfers, could be ordered from the Director, National Archives and Records Administration (NARA). The RO was advised to request the MR’s for a three month period. The RO was advised to include relevant unit designations at the company and battalion levels. The Board notes that MR’s have not been requested. Subsequent to the ESG response, the Board remanded the case for additional development. In response to the January 1995 remand, the veteran submitted a copy of his DA Form 20, a copy of his September 1992 statement, and additional statements regarding his alleged stressors. He also provided the names of two other individuals he knew while in Vietnam. In a May 1995 rating action, the RO determined that without additional information, there was no basis to request further verification from the ESG. However, in a March 1996 hearing, the veteran provided additional details of an alleged attack on his unit. He claimed that he was blown out of bed and ended up in a bunker. He stated there was gunfire, rockets and mortars. A Spec 5, by the name of Cecil, was also in the bunker. The two of them went to Highway 1 where they were told to load bodies on the back of the deuce and a half and a 5 ton truck. He stated that skin from the bodies came off on his hands. He left and went back to his unit. He stated that the incident occurred in January 1968, when he was in country. In adjudicating a claim for service connection for PTSD, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); see Hayes v. Brown, 5 Vet.App. 60, 66 (1993). Additionally, service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in- service stressor actually occurred, and a link, established by the medical evidence, between current symptomatology and the claimed in-service stressor. See Zarycki v. Brown, 6 Vet.App. 91, 97 (1993). In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated on the 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. Id. 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. Id. at 79. 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. Id. at 78. 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 the sufficiency 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 veteran 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 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 is pointless. Likewise, it the examiners render 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. The Board notes that the RO has not referred the additional stressor information provided by the veteran to the ESG in another attempt to verify the claimed stressors. In this respect, the Board acknowledges that the information provided by the veteran probably is not as complete as the ESG will need to verify the existence of the appellant’s claimed stressors. Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of PTSD 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) (emphasis added). Accordingly, as the development outlined in Manual M21-1, includes providing the information submitted by the veteran to the ESG, such development is mandatory. The Board observes that while the record contains documentation of PTSD, an examination based on a questionable history is inadequate for rating purposes. West v. Brown, 7 Vet.App. 70, 77-8 (1994). Thus, it is necessary that the veteran be provided an examination where the examiner has the accurate history of the appellant’s military service. In accordance with the statutory duty to assist the veteran in the development of evidence pertinent to his claim, the case is REMANDED for the following actions: 1. The RO should again request the veteran to provide a written statement which provides more specific details concerning the stressful events which he witnessed during service, if more can be remembered, including specifics about the incident involving the attack on his unit, the and the loading of the dead bodies. Specific dates, places and names of individuals involved should be provided, to include the names of any individuals killed. The veteran is advised that this information is vitally necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information can not be conducted. In this respect, the Board takes this opportunity to inform the veteran that the Court has held that asking the veteran to provide the underlying facts, i.e., the names of 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). 2. As was suggested by the ESG, the RO should request Morning Reports (MR’s), DA Form 1, from the Director, National Archives and Research Administration (NARA),ATTN: NCPMA-O, 9700 Page Boulevard, St. Louis, Missouri 63132. 3. After obtaining the foregoing requested information from the appellant, the RO should forward it together with copies of his service personnel, medical records (on file), a copy of his record of service (DD-214), a copy of his DA Form 20 and a copy of his hearing transcript to the United States Army and Joint Services Environmental Support Group (ESG), 7798 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 file. 4. Following receipt of the ESG’s report, and the completion of any additional development warranted or 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. If no combat stressor has been verified, the RO should so state in its report. In reaching this determination, the RO should address any credibility questions raised by the record. This report is then to be added to the claims folder. 5. Then and only then, should the RO schedule the veteran for a psychiatric examination by a board of two VA psychiatrists. The RO is to stress to the veteran the seriousness of the scheduled examination, the importance of a definite psychiatric diagnosis, and the obligation of reporting to the examination at the proper place and time. Any appropriate studies, including PTSD sub scales are to be performed. The claims file and separate copies of this remand must be made available to and reviewed by the examiners prior to conduction and completion of the examination. Prior to the examination, the RO is to inform the examiners of the results of its determination in paragraph (4) above as to the existence of a stressor or stressors. The examiners should report all Axis I and II diagnoses present, if any, discuss any psychosocial stressors, and resolve any conflicts found between their findings and the diagnostic findings noted in the evidence associated with the claims file. With regard to PTSD, the RO must specify for the examiners the stressor or stressors that it has determined are established by the record and 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. The examination report should reflect review of pertinent material in the claims file. In determining whether or not PTSD is present due to an in service stressor the examiners are hereby notified that only the verified history detailed in the reports provided by the ESG and/or the RO may be relied upon. If the examiners believe that PTSD is the appropriate diagnosis they must specifically identify which stressor(s) detailed in the ESG’s and/or the RO’s report is/are responsible for that conclusion. The examiners should specify (1) whether each alleged stressor found to be established by the record by the RO was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiners. Any and 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, and explain what the assigned score means. 6. The examiners should also be requested to determine whether clarification of the veteran’s diagnoses, if any, would be assisted by a period of hospitalization for examination and observation. If determined appropriate by the examiners, such hospitalization for examination and observation should be scheduled and conducted. The report of hospitalization should include the complete history of treatment and observation, including copies of all clinical records, discharge summary, examination reports, nurses notes, and therapy records, prepared during the hospitalization. If the examiners determine that a period of hospitalization is not required, the examiners should so state. All necessary special studies or tests, to include psychological testing and PTSD sub-scales should be accomplished. 7. 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 psychiatric examination report to verify that any diagnosis of PTSD was based on the verified history provided by the ESG and/or the 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. See West, 7 Vet.App. at 77. 8. After undertaking any development deemed appropriate in addition to that specified above, the RO should re- adjudicate the issue of entitlement to service connection for PTSD. If the benefit sought 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 in this case. No action is required of the veteran until he is notified by the RO. 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. RONALD R. BOSCH 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 & Supp. 1996), 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 -