Citation NR: 9735223 Decision Date: 10/17/97 Archive Date: 10/24/97 DOCKET NO. 94-28 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The appellant-veteran served on active duty from February 1967 to January 1969. In an unappealed December 1988 rating decision, the RO denied the veteran’s initial claim of service connection for PTSD. In October 1991, the veteran applied to reopen the claim which was subsequently denied by the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO) in a July 1992 rating decision. The veteran then perfected the current appeal to the Board of Veterans’ Appeals (Board). When this claim was initially before the Board in July 1996, the Board found that new and material evidence had been received to reopen the claim and remanded the case for further development and to have the claim adjudicated, considering all the evidence of record without regard to finality of a December 1988 rating decision by the RO. After completion of the development requested by the Board, the RO continued to deny the claim of service connection for PTSD on the merits and matter is again before the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has PTSD caused by his Vietnam experiences. The veteran argues that the claim is well grounded and that the favorable evidence in support of his claim is at least in equipoise, establishing entitlement to service connection for PTSD. Attention is called to the veteran’s testimony and to the provisions of 38 U.S.C.A. § 1154(b), pertaining to any veteran who engaged in combat. DECISION OF THE BOARD In accordance with 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), after review and consideration of all the evidence and material of record in the veteran's claims file and for the following reasons and bases, the Board decides that the preponderance of the evidence is against the claim of service connection for PTSD. FINDINGS OF FACTS 1. The veteran did not engage in combat with the enemy and there is no credible supporting evidence that the claimed in- service noncombat stressors actually occurred. 2. There is no medical evidence of a clear diagnosis of PTSD. CONCLUSION OF LAW PTSD was not incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 1991 & Supp. 1997); 38 C.F.R. § 3.304(f) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual and Procedural Background The service medical records, including the reports of examinations for induction and separation, are negative for any complaint, finding or history of combat wounds or and an acquired psychiatric disorder. Service personnel records, including the Report of Discharge, DD Form 214, disclose that the veteran served in the Republic of Vietnam (RVN) from March 1968 to February 1969 as an airframe repairman with the 213th Assault Support Helicopter Company (213th ASHC). He was awarded the National Defense Service Medal, the Army Commendation Medal, Vietnam Service Medal and Vietnam Campaign Medal. After service in a May 1969 rating decision, the RO granted service connection for right shoulder and left leg scars, but rejected the history provided by the veteran that the scars were due to shrapnel injuries. The veteran has provided the following Vietnam history: back burn with scar caused by a tracer round in April 1968 at Phu Loi and right chest shrapnel wound in May 1968 at Phu Loi (initial claim for VA compensation, received in February 1969); left leg shrapnel wound in August 1968 and grazing bullet wound on back in September 1968 (initial report of VA examination in March 1969); and, while assigned to the 213th ASHC, first sergeant and two others were wounded by artillery fire in March 1968 and sent to Japan and the United States for treatment , and in May 1968 enemy mortar rounds hit the flight line and a CH-47 helicopter, killing J.C. (May 1988 Statement in Support of Claim). A December 1987/March 1988 VA hospital summary discloses that the veteran was admitted with delusions of jealousy, persecution and influence, following the loss of his job. History included alcohol abuse, but no mental illness. The diagnoses were organic delusional syndrome and history of alcohol abuse. On initial VA psychiatric examination in September 1988, after a review of the veteran’s claims file, the examiner referred to: neuropsychological testing during the December 1987/March 1988 VA hospitalization that was consistent with mild organic brain disorder; the veteran’s service in RVN; and, the veteran’s May 1988 statement about experiencing artillery fire which injured and killed men in his unit. The veteran stated that he sustained injuries for which he was service-connected from mortar shell that exploded near him in Vietnam. He complained of nightmares of Vietnam were he is under bombardment from mortar shells. The pertinent diagnoses were organic delusional syndrome, probably due secondary to alcohol dependence, and, anxiety disorder, not otherwise specified, with features of PTSD. The examiner commented that the anxiety disorder did not meet the requirements for making a diagnosis of PTSD. In October 1988, a Board of three VA psychiatrists, who reviewed the complete claims file with reference to “combat” service in Vietnam, and the available VA medical records, concluded that there was no convincing evidence to support a diagnosis of PTSD. On non-VA psychiatric examination, conducted in July and August 1991 while the veteran was hospitalized for psychotic and delusional behavior, history included being wounded in combat, the diagnosis was bipolar-affective disorder with mood congruent psychotic features. In a September 1991 statement, the veteran stated that in July 1968 at Phu Loi his area was hit with five artillery rounds that killed the company first sergeant and wounded two others (in an undated documented without attribution the incident reportedly occurred in February 1968, in a March 1992 statement by the veteran the incident occurred in June/July 1968 and was the result of friendly fire, in a June 1993 statement by the veteran, referring to the same incident, there was no report of casualties) [hereinafter referred to as Friendly-Fire] and that in September 1968 his area was hit by enemy rockets that hit a CH-47 helicopter and killed J.C. [hereinafter referred to as Enemy-Rocket- Attack](in an undated documented without attribution the incident reportedly occurred in March 1968). He also stated that in January 1969 he and three others were captured by the VC and 12 days they escaped. VA hospital summaries discloses the following: diagnoses of delusional disorder and personality disorder (January/February 1989); diagnosis of bipolar disorder, manic (February/April 1991); diagnosis of bipolar-affective disorder, manic phase with mood congruent psychotic features, history included being hit by shrapnel in Vietnam (September /October 1991); and, diagnoses of bipolar disorder and doubtful PTSD (December 1991/January 1992). In May 1992, a Board of three VA psychiatrists, who reviewed the claims file with reference to the veteran’s service in Vietnam, concluded that there was evidence in the clinical records to support the diagnosis of bipolar disorder, manic, with psychotic symptoms, and no evidence in the available record to support a diagnosis of PTSD. May and June 1992 reports of a non-VA program, providing readjustment counseling, that was authorized by VA, discloses that the veteran had been evaluated for several symptoms, including chronic depression since his return from Vietnam. Military history included the veteran’s assignment as a door gunner a CH-47 helicopter with exposure to enemy fire and his subjection to mortar attacks, including one that killed his best friend, J.C., Although there was a history of several hospitalizations, no diagnoses were reported. The diagnostic impressions were PTSD and dysthymia. The counselor signing the reports identify himself was F. G., M.A. In an October 1992 statement, the Program Director, A. K. H., CSW-ACP, stated that the veteran had been in therapy for PTSD since March 1992. Other program records show that the veteran remained in therapy until July 1993. In the July 1992 rating decision, the RO reported that the veteran’s claim to be a prisoner of war (POW) had not been verified. Reports of a VA Mental Hygiene Clinic disclose that in October 1992 the veteran was seen by psychiatrist whose assessments were bipolar disorder, manic episode, and PTSD. The psychiatrist indicated that PTSD had been a recent concern and seem to present an added complication. In October 1993, the same Board of three VA psychiatrists, who had reviewed the veteran’s file in May 1992, was asked by the RO to review the evidence since May 1992 to determine whether there was adequate evidence to support a diagnosis of PTSD. On review of the May and 1992 reports of F. G. A., M.A., the Board stated the focus was on PTSD symptoms, excluding any substantive reference to other diagnoses and hospitalizations. The Board also considered the diagnosis of PTSD by a VA psychiatrist in October 1992. The Board concluded that there was evidence that the veteran served in Vietnam and he was involved in various distressing war experiences, but there was still no adequate evidence in the record to support the diagnosis of PTSD. There was evidence in the clinical records to support the diagnosis of bipolar disorder, manic, with psychotic symptoms. The veteran testified that in Vietnam his base camp was in Phu Loi where he repaired damaged helicopters, that he flew a few friendly, but not combat, missions in a helicopter as a machine gunner, that one night his base camp was hit by friendly fire, injuring his first sergeant and two others and only one returned to the unit after treatment, and that on another occasion the camp was hit by enemy rockets, killing a crew chief, J.C. He also testified that he had symptoms of flashbacks and nightmares of Vietnam and startle reactions. May 1994 hearing transcript at 1-8. Additional VA Mental Hygiene Clinic records disclose that in March 1992 the veteran reported having combat dreams about Vietnam where he served in helicopter maintenance and as a door gunner. The assessment was bipolar, manic episode. In April 1992, PTSD with onset in 1988 was added to the assessment. Thereafter the veteran was seen periodically by the same psychiatrist from July 1992, including the October 1992 follow-up noted above, to July 1996 with the same assessments -- bipolar disorder and PTSD. In its July 1996 remand, the Board requested additional development to verify the Vietnam stressors and to afford the veteran a VA psychiatric examination. In response to the Board’s request, in an August 1996 statement, the veteran indicated that the Friendly-Fire incident occurred around August 1968 and that he never found out what happened to the First Sergeant after he had been hit. As for the second incident, the Enemy-Rocket-Attack, he indicated that the crew chief was medivacked from the compound and he learned later that the crew chief had died on the way to the hospital. In an October 1996 report, the U.S. Army & Joint Services Environmental Support Group (ESG) reported that the Operational Reports -- Lessons Learned, submitted by the veteran’s parent unit did not mention attacks involving the 213th ASHC during March, August or October 1968, and Army casualty data did not list J. C. as killed in action. On VA psychiatric examination in March 1997, the veteran was evaluated for PTSD. The claims file was reviewed. The examiner noted that previously the veteran had claimed to be a helicopter gunner and POW, neither of which had been substantiated, and the veteran did not claim either status during the examination. The veteran did describe two traumatic events in Vietnam, they were, the Friendly-Fire incident in which there were three casualties, and the Enemy- Rocket-Attack with the direct hit on a helicopter with the crew chief inside and he had been told the crew chief died on the way to the hospital. The examiner reviewed the veteran’s psychiatric history, beginning with the December 1987 VA hospitalization and included the VA outpatient (Mental Hygiene Clinic) diagnosis of bipolar disorder and PTSD. There was also the history that the veteran claimed to have been hit by shrapnel. The examiner expressed the opinion that the primary diagnosis was bipolar disorder and that the veteran did experience some distressing events during military service and he did have some elements of PTSD by history, but he could not make a full diagnosis of PTSD. The pertinent diagnosis was bipolar disorder, manic type, with psychotic features, currently in remission with medical treatment and some symptoms of PTSD. Analysis A. Well-Grounded Claim Under 38 U.S.C.A. § 5107(a), a person claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Veterans Appeals (Court) has defined a well-grounded claim as a "plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded service-connection claim generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and a current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam 78 F.3d. 604 (Fed. Cir. 1996) (table). For the purpose of determining whether a claim is well grounded, the evidence is presumed to be credible. King v. Brown, 5 Vet. App. 19, 21 (1993). Where the determinative issue involves either medical etiology (such as with respect to a nexus between a current condition and an in-service disease or injury) or a medical diagnosis (such as with respect to a current disability), competent medical evidence is generally required to fulfill the well-grounded-claim requirement of § 5107(a) that the claim be “possible” or “plausible”. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). On the facts of this case, the Board finds that the veteran satisfied his initial burden of submitting a well-grounded PTSD claim because he has submitted medical evidence of current disability (May/June/October 1992 reports of a non-VA program, providing readjustment counseling, that was authorized by VA, with the diagnostic impression of PTSD, and the May 1992 to July 1996 VA Mental Hygiene Clinic records with the assessment of PTSD, each presumed credible for the limited purpose of establishing a well-grounded claim); lay evidence of in-service stressors, which in a PTSD claim is the equivalent of in-service incurrence (the veteran’s lay statements and sworn hearing testimony relating to stressors during service, presumed credible for the limited purpose of establishing a well-grounded claim); and, medical evidence of a nexus between in-service stressors and PTSD (May/June/October 1992 reports of a non-VA program, providing readjustment counseling, that was authorized by VA, with the diagnostic impression of PTSD associated with an in-service stressor of the Enemy-Rocket-Attack, and the May 1992 to July 1996 VA Mental Hygiene Clinic records with the assessment of PTSD associated with Vietnam combat dreams, each presumed credible for the limited purpose of establishing a well- grounded claim). The medical evidence of a generalized connection between PTSD and his Vietnam experiences is sufficient to provide the requisite medical evidence of a nexus between service and a current disease that is necessary under Caluza to well ground a PTSD claim. After review of the record and of the veteran’s evidentiary assertions, the Board determines that the facts relevant to the claim have been developed and there is no further duty to assist the veteran with the development of his claim. 38 U.S.C.A. § 5107(a). B. Changes in the Law During the Pendency of the Appeal During the pendency of this appeal 38 C.F.R. § 3.304 was amended, effective in May 1993, to include subsection (f), pertaining specifically to PTSD service-connection claims. Prior to the May 1993 amendment, PTSD claims were governed by provisions of the VA Adjudication Procedure Manual M21-1 [hereinafter M21-1], Subchapter XII, para. 50.45 (Jan. 25, 1989), that required essentially the same elements that were incorporated in 38 C.F.R. § 3.304(f). Subsequently, the M21- 1 provisions were amended to reflect the PTSD requirements set forth in 38 C.F.R. § 3.304(f). See M21-1, Part VI, para. 11.38 (first sentence) (Feb. 13, 1997). The veteran is entitled to have his claim adjudicated under whichever regulatory or M21-1 provision would be more favorable to him in light of the regulatory change while his case was on appeal to the Board. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Also the Court has previously held that the M21-1 provisions of para. 7.46, pertaining to PTSD, were substantive rules and the equivalent to VA regulations. Hayes v. Brown, 5 Vet. App. 60, 67 (1993). The adoption of 38 C.F.R. § 3.304(f) in May 1993 moots the M21-1 provisions regarding PTSD adjudications except where the M21- 1 is more favorable to the veteran. Also during the pendency of this appeal, effective November 7, 1996, VA amended several sections of the Schedule for Rating Disabilities in order to update the portion of the Rating Schedule, pertaining to mental disorders, and, in part, to conform with changes with the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV), replacing the 1980 3rd edition of DSM (DSM-III) and the 1987 revised 3rd edition DSM (DSM-III-R). 61 Fed. Reg. 52,695 (1996) (to be codified at 38 C.F.R. Part 4, §§ 4.125 to 4.130). Under DSM-IV, the diagnostic criteria for PTSD, in pertinent part, shifts from an objective standard (seen in DSM-III-R) in assessing whether a stressor is sufficient to trigger to PTSD to as subjective standard. The November 1996 amendment has not changed the requirements of 38 C.F.R. § 3.304(f) and the M21- 1 provisions. In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court held that the DSM diagnostic criteria cannot be read in a manner that would add requirements over and above the three primary elements set forth in 38 C.F.R. § 3.304(f). Accordingly, the applicable DSM criteria come directly into play for adjudication only when there is a medical opinion as to a current PTSD diagnosis and a nexus of current symptomatology to a claimed in-service stressor -- two of the three PTSD elements under 38 C.F.R. § 3.304(f). At that point, the applicable DSM criteria may be used only as the basis for a return of the examination report to the RO for clarification or further examination, and such a return is mandated when the Board believes that the report does not accord with the applicable DSM diagnostic criteria. The version of DSM most favorable to the veteran applies. C. Applicable Law and Regulations Adjudication of a well-grounded claim of service connection for PTSD requires the evaluation of the evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). With respect to disabilities incurred during combat, VA is required to accept as sufficient proof of service connection “satisfactory lay evidence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact there is no official record of such incurrence in such service”. 38 U.S.C.A. § 1154(b). Section 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred in service, but not a basis to link etiologically the condition in service to the current condition. In addition section (f) of 38 C.F.R. § 3.304, pertaining to the adjudication of PTSD claims, provides that: 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 medical evidence, between current symptomatology and the claimed in service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. POW status that satisfies the requirements of 38 C.F.R. § 3.1(y), in absence of evidence to the contrary, is conclusive evidence of the claimed stressor. The award of service connection for PTSD, therefore, requires the presence of three elements: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specified claimed in-service stressor. D. Applying the Law to the Facts (1). Current medical diagnosis: The evidence in favor of a current medical diagnosis of PTSD consists of the May/June/October 1992 reports of a non-VA program with the diagnostic impression of PTSD made by a counselor with a M.A. degree, who referred to the Enemy-Rocket-Attack stressor (which the Board construed as potentially combat related ), and a clinical social worker, and the May 1992 to July 1996 VA Mental Hygiene Clinic (MHC) records with the assessment of PTSD by a VA psychiatrist, who referred to combat dreams. The evidence against the current diagnosis of PTSD consists of several medical opinions by VA psychiatrists, including Boards of three, who on three separate occasions (October 1988, May 1992 and October 1993) found the evidence inadequate to support the diagnosis for PTSD. In light of the above, the Board doubted the sufficiency of the veteran’s medical evidence. As the veteran’s claim was well grounded, in order to fulfill the duty to assist under 38 U.S.C.A. § 5107(a), the Board in its July 1996 remand, returned the case for clarification of the diagnosis, affording the veteran a comprehensive VA psychiatric examination. On VA psychiatric examination in March 1997, the examiner noted that the veteran described two traumatic events in Vietnam, they were, the Friendly-Fire incident in which there were three casualties, and the Enemy-Rocket-Attack incident in which there was a direct hit on a helicopter with the crew chief inside. The examiner reviewed the veteran’s psychiatric history, beginning with the December 1987 VA hospitalization and included the VA outpatient (Mental Hygiene Clinic) diagnosis of bipolar disorder and PTSD. In the examiner’s opinion, the primary diagnosis was bipolar disorder and the veteran did have some elements of PTSD by history, but he could not make a full diagnosis of PTSD. The pertinent diagnosis was bipolar disorder, manic type, with psychotic features, currently in remission with medical treatment and some symptoms of PTSD. In this case, the Board finds the March 1997 report of VA psychiatric examination more persuasive because the claims file was reviewed and the it takes into account the records of prior medical treatment, including the prior diagnosis of PTSD, in the context of the alleged in-service stressors. Also the Board finds the May/June/October 1992 reports of a non-VA program with the diagnostic impression of PTSD unpersuasive because the health care professionals, one counselor with a M.A. degree, and the other clinical social worker, providing the diagnostic impression of PTSD are not shown to be mental health professionals. LeShore v. Brown, 8 Vet. App. 406. 409 (1995) (medical professional is not competent to opine as to matters outside his scope of expertise). The Board also finds unpersuasive, the assessment of PTSD by a VA MHC psychiatrist because the evaluation was not a fully informed one, that is, it is not shown that it was done with review of the claims file. For these reasons, the Board finds that the preponderance of the evidence is against finding that the medical evidence establishes a current, clear diagnosis of PTSD. (2). Occurrence of in-service stressors: As for the occurrence of in-service stressors, there is no conclusive evidence of an in-service combat stressor on the basis of service department evidence, that is, the veteran was assigned to combat support unit and not a combat unit, his awards did not include a combat citation or a Purple Heart Medal, and his alleged POW status was not verified on any service department record, 38 C.F.R. § 3.1(y)(1), and there was no supporting evidence from other sources of a combat stressor. Significantly, ESG was unable to verify the rocket attack, resulting in the death of J. C. during the veteran’s tour in RVN. As this was the only potential combat stressor that the veteran described to the VA psychiatrist on examination in March 1997, the evidence does not support finding that the veteran engaged in combat with the enemy. As for the veteran’s statements and testimony about the in- service combat stressors, 38 U.S.C.A. § 1154(b) does not require the acceptance of a veteran’s assertion that he was engaged in combat with the enemy. See Irby v. Brown, 6 Vet. App. 132, 136 (1994) (section 1154(b) cannot be applied to appellant’s PTSD claim until the Board first finds that the appellant engaged in combat). As above, on the basis of the evidence of record, the Board has found that the veteran did not engaged in combat with the enemy. As for the noncombat related stressors, the Friendly-Fire incident, credible supporting evidence from any source showing that the stressor actually occurred is required and there was no such evidence. As for the veteran’s statements and testimony, standing alone, regarding a noncombat stressor is insufficient to establish occurrence of a noncombat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). For these reasons, the Board finds that the preponderance of the evidence is against finding that the claimed, in-service stressors were either related to combat or actually occurred. (3). Nexus evidence: As for the VA MHC psychiatrist’s opinion that the veteran has PTSD related to his experiences in Vietnam, this does not qualify as the requisite corroborating evidence of an in-service stressor for the diagnosis of PTSD. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996) (the Court held that credible supporting evidence of the actual occurrence of an in-service stressor cannot consists solely of after-the-fact medical nexus evidence.). In light of the above, there is not an approximate balance of positive and negative evidence to which the benefit-of-the- doubt standard applies as the veteran’s testimony and statements and the VA MHC psychiatrist’s medical opinion are not sufficient to establish the actually occurrence of in- service stressors either combat or noncombat to establish a clear diagnosis of PTSD. In the absence of evidence of a current, clear medical diagnosis of PTSD, credible supporting evidence that the claimed in-service combat or noncombat stressors actually occurred, and medical evidence of a causal nexus between current symptomatology and the claimed, but unsubstantiated, in-service stressors, the preponderance of the evidence is against the claim of service connection for PTSD. ORDER Service connection for PTSD is denied. GEORGE E. GUIDO JR. Acting Member, Board of Veterans' Appeals 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -