Citation NR: 9735773 Decision Date: 10/23/97 Archive Date: 10/28/97 DOCKET NO. 96-30 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Daniel G. Krasnegor, Associate Counsel INTRODUCTION The veteran served on active duty from October 1944 to July 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 1996 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). REMAND 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. Service connection may be granted for PTSD if the evidence establishes that PTSD was incurred in service or as the result of events experienced during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Notwithstanding the lack of a diagnosis of PTSD during service, service connection may be granted if all of the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 1991 & Supp. 1997); 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (1996). In this case, the veteran's service administrative records do not show that he was awarded the purple heart or other awards denoting combat experience. Nor is there evidence of his claimed stressors. Of record are a July 1995 and April 1996 statements in which the veteran set forth service-related events which he claimed led to PTSD. During his personal hearing in June 1997, the veteran restated his claimed stressors. The Board notes that the RO has not referred the stressor information provided by the veteran to USASCRUR in an 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 USASCRUR will need to verify the existence of the veteran’s claimed stressors. Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of PTSD claims 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 USASCRUR, such development is mandatory. Manual M21-1, Part VI, 7.46(f)(2) (emphasis added). The Board notes further that the criteria for rating psychiatric disabilities was changed effective November 7, 1996. Under the new criteria, mental disorders are to be consistent with the Diagnostic and Statistical Manual of Mental Disorders (DSM) IV. 38 C.F.R. § 4.125 (1996). Previously, mental disorders were evaluated pursuant to DSM III, 38 C.F.R. § 4.125 (1995). At the time VA adjudication of this case began, DSM-III-R criteria for PTSD had been incorporated by the VA Adjudication Procedure Manual, M21-1. DSM-III-R provides that an essential feature of a diagnosis of PTSD is the development of characteristic symptoms following an “event that is outside the range of usual human experience and that would be markedly distressing to almost anyone, e.g., serious threat to one’s life or physical integrity; . . . or seeing another person seriously injured or killed as the result of an accident or physical violence.” DSM-III-R at 247-48. However, the diagnostic criteria for a stressor now in effect for VA adjudication under DSM-IV differ substantially from those in DSM-III-R. DSM IV defines stressors as a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. (2) the person’s response involved intense fear, helplessness, or horror. Quick Reference to the Diagnostic Criteria from DSM IV (Michael B. First, M.D., editor, 1994). The Court has recently addressed the effect of the change to DSM IV on claims for PTSD in Cohen v. Brown, 10 Vet. App. 128 (1997). In that case, the Court pointed out that the requirement that a stressor be outside the range of usual human experience that would evoke significant symptoms of distress in almost anyone had been dropped in DSM IV. The Court made the following holding: . . . the Court takes judicial notice of the effect of this 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 a 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 anyone.” The sufficiency of a stressor is, accordingly, now a clinical determination for the examining mental health professional. Cohen, slip. op. at 38-39. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran applies unless congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Thus, the Board is of the opinion that the claim must be returned for consideration by the RO under the new criteria. Therefore, pursuant to VA’s duty to assist the appellant in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997); 38 C.F.R. § 3.103(a) (1996), the Board is deferring adjudication of the issue on appeal pending a remand of the case to the RO for further development as follows: 1. The RO should request the veteran to identify all physicians who have treated him for psychiatric disorders in the recent past. After obtaining any necessary authorization, the RO should then obtain medical records from all sources identified by the appellant which are not already of record. 2. The RO should request from the veteran a statement containing as much detail as possible regarding any and all stressful events to which he was exposed in service. He should be asked to provide specific details of the claimed stressful events to the best of his ability. The veteran's statement should include dates, places, detailed descriptions, units of service, duty assignments, as well as the names, units of assignment and any other identifying information concerning other individuals involved in the events. In this respect, the Board takes this opportunity to inform the veteran that the United States Court of Veterans Appeals (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). 3. After obtaining the foregoing requested information from the veteran, the RO should forward it together with a copy of the veteran's July 1991 statement and June 1997 personal hearing transcript, copies of the veteran's medical records (on file), and a copy of his record of service (DD Form 214) to the USASCRUR, 7789 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 the above, the RO must make a specific determination, based on the complete record, with respect to whether the veteran was exposed to a stressor or stressors in service, and if so, the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor or stressors in service or prior to service it has determined are 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 veteran was exposed to a valid stressor or stressors, action should be taken to schedule the veteran for a psychiatric examination by a board of two VA psychiatrists who have not previously seen or treated him. Any appropriate studies, including PTSD sub scales are to be performed. The claims file and a copy of this remand must be made available to and reviewed by the examiners prior to completing their examinations. Prior to the examinations, 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 must be requested to express an opinion as to the correct diagnosis to account for the veteran’s psychiatric symptomatology reported in service, and whether any psychiatric disorder currently found on examination is related thereto. 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 veteran was exposed to a stressor in service. If the examiners believe that PTSD is the appropriate diagnosis they should specify (1) whether the alleged stressor 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 alleged stressors found to be established by the record by the RO, and found to be sufficient to produce PTSD by the examiner. Any and all opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning (GAF) Score which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders and explain what the assigned score means. 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 reports 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 appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for a psychiatric disorder, including 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. No action is required of the veteran until he is notified by the RO. 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 -