Citation NR: 9730907 Decision Date: 09/09/97 Archive Date: 09/11/97 DOCKET NO. 94-36 084A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Marcy L. Rogoff, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to December 1968. This appeal arises from a March 1994 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). In that decision, service connection for PTSD was denied. 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 the manager of Veterans Services, Caronelet Psychiatric Care Center in Richland, Washington and a registered nurse at the VA Medical Center in Walla Walla, Washington. During this appeal, the veteran has described several incidents that he claims are the stressors precipitating PTSD. In a statement dated in October 1993, the veteran reported that, while stationed with the 73rd Engineering Company in Vietnam, a rock crusher which he was running, was fired upon by snipers. His company was pinned down by sniper fire. He also reported that on another occasion he and his friend were on a two man sniper patrol, when his friend was captured, tortured and killed by the Viet Cong. The veteran indicated that he was unable to help his friend because he was outnumbered, but witnessed his death. He thought that his friend’s name was Brad Hart, but he was not certain. This incident occurred while he was on temporary duty with the 504th Engineering Company in the Quinhon area around August 1968. He stated that he has flashbacks and nightmares of these two incidents. During his October 1995 personal hearing, the veteran testified that his primary duties in Vietnam consisted of guard duty and field duty with the Combat Engineers. He stated that he had not had any luck finding other individuals from the 73rd Engineering Company who could provide statements regarding his service in Vietnam. He thought that the rock crusher incident would have been documented, but he did not have those records. He also testified that the sniper patrol situation, in which he witnessed his friends death, occurred while he was on temporary duty with the 84th Engineering Company. He placed both incidents as having occurred around December 1967. The veteran’s representative has requested that the veteran’s claim be returned to the RO for verification by the U.S. Armed Services Center for Research of Unit Records (USASCRUR) formerly known as the United States Army and Joint Services Environmental Support Group (ESG). The hearing officer determined that the evidence did not provide a sufficient basis for verification of the veteran’s alleged stressors through the ESG. The dates were noted as overbroad and the friend who was killed while on patrol was not listed in the Vietnam Memorial Directory. 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, 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. The Board notes that the RO has not referred the stressor information provided by the veteran to the USASCRUR 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 USASCRUR will need to verify the existence of his 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 now known as USASCRUR, 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 sniper attack on his unit and the death of his friend while on patrol. 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. After obtaining the foregoing requested information from the appellant, the RO should forward it together with copies of his service personnel and medical records (on file), a copy of his record of service (DD-214) and a copy of his hearing transcript to the USASCRUR, 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. 3. Following receipt of the USASCRUR’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 USASCRUR. 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. 4. If a stressor(s) has been verified, 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 (3) 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 USASCRUR 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 USASCRUR’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. 5. 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. Any necessary special studies or tests, to include psychological testing and PTSD sub-scales should be accomplished. 6. 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 USASCRUR 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. 7. 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. 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 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 -