Citation NR: 9729329 Decision Date: 08/25/97 Archive Date: 08/29/97 DOCKET NO. 96-29 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether new and material evidence has been presented to warrant reopening a claim of entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Daley INTRODUCTION The veteran had active military service from August 1968 to August 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a February 1995 rating decision from the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that entitlement to service connection for PTSD was denied by final Board decision dated in August 1991. Thereafter, the RO informed the veteran of the laws and regulations pertinent to new and material evidence. In rating decisions dated in April 1993 and March 1994, the RO continued and confirmed prior denials in the absence of a diagnosis of PTSD. In February 1995, the RO appears to have reopened the veteran’s claim and then to have denied entitlement to service connection for PTSD based on all the evidence of record; however, in that regard the procedural posture of the case is unclear. Moreover, the issue of whether new and material evidence has been submitted to reopen a claim is one which the Board has a legal duty to address regardless of the actions of the RO. Barnett v. Brown, 8 Vet.App. 1 (1995). The Board further notes that in a statement received in June 1995 the veteran clearly expressed disagreement with the February 1995 decision and requested a Statement of the Case. See 38 C.F.R. § 20.200, 20.201 (1996). No Statement of the Case was provided based on the February 1995 denial; rather, by rating decision dated in February 1996, the RO re-affirmed the February 1995 denial, stating that there was no basis upon which to re-evaluate the veteran’s claim. After the veteran expressed disagreement with that determination, the RO issued a Statement of the Case dated in May 1996. The veteran timely filed VA Form 9 to complete his Substantive Appeal. Based on the above, the Board finds that the February 1995 rating decision did not become final and is in fact the action on appeal before the Board. The issue will accordingly be addressed as indicated on the first page of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that during his military service in Vietnam he was exposed to rocket and mortar fire and witnessed deaths and injuries. He relates specific incidents of being involved in enemy attacks and further relates ongoing company pranks that he asserts caused undue stress. He argues that PTSD developed as a result of his military experiences. He now asserts that he has presented new and material evidence sufficient to warrant reopening his claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's two-volume claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been presented to warrant reopening the veteran’s claim of entitlement to service connection for PTSD. FINDINGS OF FACT 1. A March 1994 RO decision found that no new and material evidence had been presented to warrant reopening the veteran’s claim of entitlement to service connection for PTSD. The veteran was notified of that decision and did not appeal; thus, the determination became final. 2. Additional evidence submitted since the March 1994 rating decision is new, probative of the issue at hand and, when viewed in the context of all the evidence of record, both new and old, raises a reasonable possibility of changing the prior outcome. CONCLUSION OF LAW New and material evidence has been presented to warrant reopening a claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran had active military service from August 1968 to August 1971, a portion of which was in Vietnam. His military occupational specialty was apprentice aircraft mechanical repairman. In Vietnam he was attached to Organization Battery E, Aviation, 82nd Artillery. His DD 214 does not indicate that he is in receipt of any awards or honors indicative of combat. The record does contain a copy of a March 1971 order awarding him an Army Commendation Medal for meritorious service in connection with ground operations against a hostile enemy force in the Republic of Vietnam. He was also awarded a Vietnam Combat Certificate for service with the 362nd Aviation Battalion of the First Cavalry Division Airmobile from August 1970 and August 1971. An April 1988 outpatient clinic record includes a diagnosis of depression with anxiety. The history noted therein includes a 1974 automobile accident in which the veteran’s younger sister and brother-in-law were killed; the veteran himself received serious injuries rendering him totally disabled. Progress notes dated throughout 1988 reflect that the veteran was experiencing frustration, agitation and depression related to his physical disabilities. Records also include note of an abusive childhood. VA outpatient reports dated in January 1989 indicate psychological counseling for difficulty with family relationships and anger due to physical disabilities. The veteran reported combat-related dreams. Records through June 1989 indicate psychologic difficulties due to his continuing disabilities. An April 1989 record includes comment that the veteran’s psychic tension was partially due to PTSD from Vietnam, but more due to his physical disabilities and due to adjusting to a more dependent life style, as well as due to financial and marital pressures. April 1989 outpatient records indicate that the veteran presented with a two-year history of difficulty with social relationships. He reported incidents of violent behavior, drug and alcohol use, rehabilitation for substance abuse, and multiple physical problems. Impressions were a history of PTSD and a history of alcohol and substance abuse; an explosive personality disorder and a probable major depressive episode. In June 1989, H.W., M.D., evaluated the veteran for complaints to include depression. The veteran reported a history of many years of depression, and complained of sleep disturbance, anhedonia, significant weight gain, diminished self-esteem and past periods of suicidal ideation. He provided a history of alcoholic and abusive parents and stated that he himself heavily consumed alcohol between 1971 and 1983. He denied alcohol consumption since that time. He stated that at age 17 he enlisted in the military and was subsequently attached to an assault helicopter team and involved in the transport of artillery by helicopter. He stated that he saw many friends die in combat. The veteran further stated that he became addicted to heroin during Vietnam and used various drugs after returning to the United States. He reported frequent intrusive stressful recollections of Vietnam, including flashbacks of being blown out of his bunker by a mortar round. He stated that he avoided war movies, frequently felt angry and tense and was hypervigilant. He reported marked difficulties with social relationships. Diagnoses included dysthymic disorder and PTSD. Dr. H.W. went on to state that “[i]t is clear from the history detailed above that [the veteran] has experienced events outside of the range of usual experience that would be markedly distressing to almost anyone, including his combat experience and his 1974 motor vehicle accident.” In October 1989, the veteran underwent neuropsychiatric examination by a VA specialist. He reported sleeplessness, irritability, an inability to copy with stress or to maintain a social life, periods of depression, suicidal ideation, explosive anger, frustration, thoughts of Vietnam and combat- related dreams. During the evaluation interview, the veteran reported mixed feelings about Vietnam, stating feeling a closeness to the people he met there and admitting that he sometimes fantasized about being on a helicopter again. He denied difficulty watching Vietnam films or combat clips and also denied having any problem with Asian people. He reported a lot of incoming rocket and mortar attacks during his tour in Vietnam and stated that he spent a lot of time on helicopters. The veteran specifically related the following traumatic events: 1) a lightning strike on the perimeter setting off a series of mines and napalm explosions resulting in death and injuries; he specifically remembered bodies flying off a nearby tower; 2) almost falling off a ladder when a rung came loose while climbing to a high tower and then watching the man behind him fall without warning and injure his heels; 3) watching a movie when a grenade landed in his lap; it was a dud and did not go off and the veteran learned in retrospect that it was a prank. Mental status examination revealed no signs of anger, sadness or irritability. The summary was that he had a history consistent with panic disorder with developing agoraphobia and depressive symptoms, chronic in nature, most likely to take the form of dysthymia. The examiner noted the contradictory nature of the veteran’s feelings about Vietnam, stating that his recollections were not entirely unpleasurable. The examiner stated that the reported stressors would not be considered outside the range of usual human experience for most Vietnam veterans. Diagnoses were panic disorder with agoraphobia; dysthymic disorder; alcohol abuse; cannabis abuse; opiate abuse. There was no recent apparent psychosocial stressor indicated and the current Global Assessment of Functioning score (GAF) was 55. The examiner stated that there was moderate impairment based on dysthymia and panic disorder, neither related to military service. Based on the above, a December 1989 rating decision denied entitlement to service connection for PTSD. The veteran was notified of that decision by letter dated in January 1990 and informed of the evidence necessary to warrant service connection for PTSD. The veteran perfected his appeal with respect to that decision. In his April 1990 Substantive Appeal, he re-asserted the following: 1) being exposed to an exceptionally large amount of shelling in Vietnam, specifically seeing many wounded and killed-in-action around Thanksgiving 1970; 2) a dud grenade landing in his lap; and 3) seeing his friend, B. Burke, fall off a ladder and injure his feet after the veteran failed to warn him of loose rungs. By decision dated in June 1991, the Board affirmed the RO’s denial of service connection for PTSD on the basis that the evidence did not show that the veteran had PTSD as a result of his Vietnam experiences. Subsequent to the Board’s final denial of service connection for PTSD, various medical evidence and further statements from the veteran have been associated with the claims file. In a statement received in March 1993, the veteran identified the name of a close comrade killed in Vietnam, F. Bengtson; he enclosed a rubbing taken from the Vietnam Veterans’ Memorial wall. VA outpatient records in April 1991 indicate continued psychiatric problems dealing with anger and frustration and note that he was physically limited due to his disabilities. Records throughout June 1992 indicate depression and stress due to familial and physical problems. A July 1992 includes notation that three of his Vietnam friends dying in the month prior. His affect was dysthymic. A March 1993 record recorded continued symptoms of PTSD to include isolation, anger, hypervigilance, poor sleep, anhedonia, and frequent intrusive thoughts of Vietnam. An April 1993 record noted many stigmata of PTSD. The examining physician included comment that there had been no formal diagnosis of PTSD, and further stated that the veteran’s adjustment problems since Vietnam could fit the parameters of PTSD, but that his major injuries in the 1974 motor vehicle accident could certainly contribute to his psychological problems. In April 1993 and March 1994 rating decisions, the RO continued to deny entitlement to service connection for PTSD. Thereafter, additional medical evidence was added to the claims file. In June 1993, the veteran began counseling sessions with E. T., M.A. The intake assessment noted that the veteran desired to get rid of anger and sadness carried from Vietnam experiences. The examiner noted that the veteran was 100 percent disabled and in receipt of Social Security benefits due to a 1974 automobile accident. E.T. reported the veteran’s history of drug and alcohol abuse for many years and growing up in a military family. The veteran stated he was stationed at “Rocket City,” in Vietnam, named for its habit of being rocketed every night. He reported losing several friends in the war, seeing medi-vac choppers bringing in wounded and dead. He gave a post-service history of a severe automobile accident in 1974, with his marriage terminating while he was in the hospital. E.T. reported that the veteran seemed deeply affected by his Vietnam experiences, feeling bad for those who died. Symptoms included association responses reminding him of Vietnam, daily intrusive thoughts, mistrust, alienation, avoidance, hypervigilance, exaggerated startle response and irritability. In a report dated in May 1994, A.P., M.D. indicated a diagnoses of PTSD, secondary to Vietnam experiences and dysthymia. In a July 1994 statement, the veteran reported participating in search and destroy missions, watching the aircraft personnel killing enemies. He provided names of crew chiefs with whom he flew, including Lt. Bengtson, killed in action May 1971. He provided more information concerning the lightening attack around monsoon season. He also reported an incident in November 1970 when a firefight took place near Tay Nin, witnessing casualties coming into Phouc Binh. He reported sneaking in to talk to the wounded and hearing their screaming and distress. In September 1994, the veteran underwent VA psychiatric evaluation. He reported a history of rocket and mortar attacks and also incidents of “fragging” within his unit; men would set up a private war trying to hurt each other. He further related being in a car accident in 1974, with his sister being killed. At the time of examination his mood and affect were extremely depressed. He reported flashbacks and intrusive thoughts about Vietnam. Diagnoses were severe PTSD and severe, recurrent major depression. The examiner stated that PTSD symptoms were related to Vietnam experiences. The examiner declined assignment of a GAF score, stating that as such was “global” it was not possible to assign a score solely to PTSD. Records of treatment with E.T. through March 1996 are also associated with the claims file, as are group therapy progress notes through July 1996 and information from the Vet Center pertinent to the veteran’s psychiatric and medical conditions. Diagnoses in the latter include PTSD due to Vietnam service, manifested primarily by significant feelings of guilt. Stressors were identified as the suicide of a Vietnam veteran he knew, a death of another veteran from seizure medications three years earlier, Vietnam experience, sexual abuse as a child, unemployment and results of the 1974 car accident, to include the death of his younger sister and his brother-in-law. Analysis The well-groundedness requirement shall not apply with regard to reopening disallowed claims and revising prior final determinations. Jones v. Brown, 7 Vet.App. 134, 138 (1994). By rating decision dated in December 1989, the RO denied entitlement to service connection for PTSD. In a June 1991 decision, the Board affirmed that denial. That determination became final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1996). Subsequent rating decisions, including one in March 1994, continued to deny a basis for re-evaluation of the veteran’s claim. He was properly informed of the March 1994 denial; he did not appeal. Thus, that rating decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1996). Once a denial of a claim of service connection has become final, it cannot subsequently be reopened unless new and material evidence has been presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board must perform a two-step analysis when the veteran seeks to reopen a claim based on additional evidence. First, the Board must determine whether the evidence is “new and material.” Second, if the Board determines that the claimant has produced new and material evidence, the claim is reopened and the Board must evaluate the merits of the veteran’s claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). “New” evidence means more than evidence which was not previously contained in the record and which is more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Material evidence is that which is relevant and probative of the issue at hand. Id. Further, to be new and material, evidence must, when taken together with all the evidence of record, create a reasonable possibility that the outcome would be changed. Manio, 1 Vet.App. at 145. The United States Court of Veterans Appeals (Court) has recently clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet.App. 273, 284, (1996) (citing Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d 78 F.3d 604 (Fed. Cir. 1996) (table)). Rather, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. If the evidence is “new” and “probative,” then it must be determined whether such evidence presents a reasonable possibility of changing the outcome of the prior decision based on all the evidence. If these conditions are met, then the evidence is both “new” and “material.” Evans, at 284. The Court also held that there must be new and material evidence submitted “since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits.” (emphasis added) Id. For the reasons discussed above, the last final decision on any basis in the instant case was the March 1994 RO rating decision. The basis for that denial was that the medical evidence of record, including treatment records added since the prior denial, did not contain a confirmed diagnosis of PTSD. Since that time the claims file clearly contains evidence both new and material to that basis: In a May 1994 report of evaluation, Dr. A.P. diagnosed PTSD secondary to Vietnam experiences; and, the September 1994 VA examination resulted in a diagnosis of severe PTSD. The VA examiner stated that the veteran’s PTSD symptoms were related to his Vietnam experiences. The additional evidence is thus both new and material to whether the veteran has PTSD that is related to his period of military service. See Evans, supra. Accordingly, the Board finds that the veteran’s claim of entitlement to service connection for PTSD has been successfully reopened. ORDER The veteran having presented new and material evidence to reopen a claim of entitlement to service connection for PTSD, the appeal is allowed to this extent. REMAND As new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for PTSD, the entire evidentiary record must be considered. Prior to consideration of the merits of the veteran’s claim, the Board has determined that further development is in order, consistent with the laws and regulations and Court decisions governing adjudication of PTSD claims. First, the Board notes that service connection for PTSD requires 1) medical evidence establishing a clear diagnosis of the condition, 2) credible supporting evidence of an in- service stressor(s), and 3) a link established by medical evidence between the in-service stressor(s) and the current PTSD. 38 C.F.R. § 3.304(f) (1996). As stated above, the veteran’s claim has been reopened based on a clear diagnosis of PTSD, determined by competent medical professionals to be related to his reported Vietnam experiences. The existence of a diagnosis of PTSD in the current records is sufficient to support a preliminary finding that the claim for service connection for this disorder is well-grounded under the case law from the Court. See Cohen v. Brown, No. 94-661 (U.S. Vet. App. March 7, 1997); see also Zarycki v. Brown, 6 Vet. App. 91 (1993). Thus, VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. §5107(a) (West 1991). The Board notes, however, that other than the veteran's own statements, the record contains no verification of any of the claimed in-service stressors. The question of whether the veteran was exposed to a stressor in service is a factual determination and VA adjudicators are not bound to accept such statements simply because treating medical providers have done so. Cohen v. Brown, supra; Moreau v. Brown, 9 Vet.App. 389 (1996); Wood v. Derwinski, 1 Vet.App. 190 (1991) (affirmed on reconsideration, 1 Vet.App. 406 (1991)); Wilson v. Derwinski, 2 Vet.App. 614 (1992). In the instant case, while the veteran has been diagnosed with PTSD, critical elements of this diagnosis, most fundamentally those concerning the existence of a stressor or stressors, appear to be based wholly upon statements of history provided to the examiner by the veteran. The Court in Zarycki, 6 Vet.App. 91, set forth the framework for establishing the presence of a recognizable stressor which is the essential prerequisite to support the diagnosis of PTSD. The Court noted that the evidence necessary to establish the existence of the recognizable stressor during service will vary depending on whether or not the veteran was “engaged in combat with the enemy” under 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304 (1996). 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, the claimant's bare assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this fact. In this case, the current record does not contain evidence that would indicate on its face that the veteran “engaged in combat with the enemy.” The Court held in Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996) as a matter of law that “if the claimed stressor is not combat-related, [the] appellants lay testimony regarding the in-service stressors is insufficient to establish the occurrence of the stressor.” In Moreau v. Brown, 9 Vet.App. 389 (1996), the Court, citing the MANUAL M21-1 Part VA, 7.46.c (Oct. 11, 1995) held that “credible supporting evidence” of a noncombat stressor “may be obtained from” service records or “other sources.” The Court, however, also held that while the MANUAL M21-1 provisions did not expressly state whether the veteran’s testimony standing alone could constitute credible evidence of the actual occurrence of a noncombat stressor, the Court’s holding in Dizoglio mandated that the veteran’s testimony by itself could not constitute “credible supporting evidence” of the actual existence of the noncombat stressor as a matter of law. Further, the Court held in Moreau, the fact that a medical opinion was provided relating PTSD to events the veteran described in service could not constitute “credible supporting evidence” of the existence of the claimed noncombat stressor as a matter of law. The Board notes that the record in this case shows that the RO contacted the National Personnel Records Center (NPRC), requesting aid station and/or unit records from the aid station identified as Phouc Vinh, located in Vietnam; the NPRC responded that they were unable to identify Phouc Vinh as a military treatment center. However, there is no evidence that the RO otherwise attempted to verify the veteran's claimed stressors. In fact, in the September 1996 Supplemental Statement of the Case the RO and Hearing Officer in essence stated that the veteran had not provided information of the specificity to allow for verification. The Board here notes that VA's duty to assist includes attempting to verify claimed in-service stressors and that the veteran has provided specific allegations of in-service stressors. In particular, at the time of his August 1996 personal hearing, the veteran provided detailed accounts of the claimed stressful events, as follows: 1) He stated he was stationed at Phouc Binh, nicknamed “Rocket City” due to the frequency of rocket attacks. He stated that on his first day there he saw wreckage from a plane that had gotten shot down and that the evening before there had been rocket attacks on the unit. He reported an average of one to three rocket attacks weekly. He further stated that that first evening the company area was gassed and subjected to rocket attacks. 2) On morning a mortar hit outside of his quarters, bouncing him off his bunk; he stated he suffered a concussion. 3) The veteran asserted that in or around September 1970 he was asked to fly with one of the helicopter gunners and that in the course of the flight he discharged an M-16; he stated that two people on the ground were killed. He gave the name of the door gunner--R. Harden. 4) Near the holidays, around Thanksgiving, he asserted there was a “skirmish” on the Cambodian border and that a lot of wounded were brought in thereafter. The veteran stated that after being injured in his 1974 automobile accident he had flashbacks of the wounded in Vietnam. 5) He reported a “lightening strike” during monsoon season. He referred to a letter he had written to his sister in February 1971 and stated that the lightening strike was probably in March 1971. He reported that the lightening struck a gallon of napalm, setting up explosions. He stated that he could see two bodies falling off a nearby tower, one completely engulfed in flames. He denied knowing the people who fell off the tower. 6) He stated that he was involved in an incident of “fragging.” While watching a movie, someone threw a grenade in his lap; it was a dud. The Board is of the opinion that the RO should attempt to verify the above-asserted stressful events, consistent with 38 U.S.C.A. § 5107(b). Based on the results of its attempts at corroboration of the veteran’s stressors, the RO should also complete any further indicated development. In particular, the Board notes that if 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 as to 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 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 would be pointless. Likewise, if 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. In that regard the Board notes the case of Cohen v. Brown, No. 94-661 (U.S. Vet.App. March 7, 1997), which alters the analysis in connection with claims of entitlement to service connection for PTSD. Significantly, the Court points out that VA has adopted the fourth edition of the American Psychiatric Associations’ 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, para. 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 examination mental health professional. Cohen v. Brown, slip op. At 38-39 (Nebeker, Chief Judge, concurring by way of synopsis). The Court 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. In the instant case, it is not clear whether the medical diagnoses of PTSD were provided based on application of the applicable DSM criteria. It appears to the Board that the regulatory amendments to § 4.125 & 4.126 and the incorporation of DSM IV, will have a potentially liberalizing effect in adjudicating a claim of entitlement to 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 most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet.App. 308, 312, 313 (1991). The problems that arise within the veteran's claim of entitlement to service connection for PTSD, in light of the case law outlined above are clear. In light of the foregoing, the Board finds that further development, as specified below, is warranted. Accordingly, the case is REMANDED to the RO for the following: 1. The veteran should be contacted and again requested to provide a detailed statement containing verifiable information regarding the events claimed as "stressors" during his military service. He should be asked to provide specific details about the events such as dates, places and identifying information such as names, ranks and units of assignment of any individuals involved in those events. In particular, the veteran should be asked to provide any additional information relating to the alleged stressors laid out above, as well as to provide information pertaining to the circumstances surrounding B. Burke’s fall from a ladder and circumstances surrounding the death of Lt. Bengtson. He should be advised that the 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. He should also be informed of the probative value of any lay statements from these persons or others with knowledge of the alleged stressful events. The RO should assist the veteran in obtaining such statements. 2. Regardless of the veteran's response, the RO should review the file and prepare a summary of all of the claimed stressors already reported in previous statements and examination reports, including those detailed above. 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) (redesignated as the U.S. Armed Services Center for Research of Unit Records (USASCRUR)), 7798 Cissna Road, Springfield, VA 22150. The USASCRUR should be requested to provide any information available which might corroborate the veteran's alleged stressors. The RO should accomplish all follow-up indicated in any received responses. 3. The RO should obtain from the veteran a list of all doctors and hospitals, both private and VA, that have treated him for any psychiatric disorder, including PTSD, and which contains the dates and locations of treatment since his separation from military service. The RO should obtain all necessary signed releases and obtain any records that are not currently associated with the claims file. 4. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the record establishes the existence of a stressor or stressors and specify what in-service stressor or stressors have been established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 5. If, and only if, the RO determines that the record establishes the existence of an in-service stressor or stressors, then the RO should schedule a special VA psychiatric examination by a Board of two psychiatrists, to determine the nature of any existing psychiatric disorders. The entire claims folder and a separate copy of this remand must be reviewed by the examiners prior to examination. The RO must specify for the examiners the stressor or stressors that it has determined are established by the record and the examiner must be instructed that only those event(s) may be considered for the purpose of determining whether exposure to a stressor in service has resulted in current psychiatric symptoms and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. The examination report should reflect review of pertinent material in the claims folder. Any necessary studies or tests, to include psychological testing and evaluation such as the Mississippi Scale for Combat-Related PTSD should be accomplished. If a diagnosis of PTSD is deemed appropriate, the examiners should (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 to 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 examiner. If additional psychiatric disorders are identified, the examiner should reconcile the diagnoses and should specify which symptoms and stressors are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. The report of the examination should include a complete rationale for all opinions expressed. 6. Thereafter, the RO should review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 7. After undertaking any development deemed essential in addition to that requested above, the RO should adjudicate the issue of entitlement to service connection for PTSD on a de novo basis. 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. 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. 1997) (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 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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 -