Citation NR: 9736454	
Decision Date: 10/30/97		Archive Date: 11/05/97
DOCKET NO.  95-04 159	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, 
Rhode Island


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


ATTORNEY FOR THE BOARD

M. Herman, Associate Counsel



INTRODUCTION

The veteran had active military service from July 1961 to 
July 1965.  This appeal arises from an September 1994 rating 
decision of the Providence, Rhode Island, regional office 
(RO) which denied service connection for PTSD.  The notice of 
disagreement was received in November 1994.  The statement of 
the case was issued in December 1994.  The veteran’s 
substantive appeal was received in January 1995.

On May 5, 1997, a hearing was held at the RO before Iris S. 
Sherman, who is a member of the Board rendering the final 
determination in this claim and was designated by the 
Chairman of the Board to conduct that hearing, pursuant to 
38 U.S.C.A. § 7102 (West Supp. 1997).

The Board notes that the issue of the veteran’s entitlement 
to a non-service-connected pension was certified for appeal 
in April 1997, and that said issue was argued before the 
undersigned at the veteran’s May 5, 1997 personal hearing.  
However, as the veteran was granted a non-service-connected 
pension by a rating action dated in July 1997, the issue is 
no longer a subject of appeal.


REMAND

Service connection for PTSD requires (1) medical evidence 
establishing a current, clear diagnosis of the condition; (2) 
credible supporting evidence that the claimed inservice 
stressor actually occurred; and (3) medical evidence of a 
causal nexus between current symptomatology and the specific 
in-service stressor.  38 C.F.R. § 3.304 (f); See also Cohen 
v. Brown, 10 Vet.App. 128 (1997).  With regard to the second 
criterion, the evidence necessary to establish that the 
claimed stressor actually occurred varies depending on 
whether it can be determined that the veteran "engaged in 
combat with the enemy."  38 C.F.R. § 3.304(f).

The veteran’s service records indicate that while serving in 
Vietnam, he was attached to Company H, 2nd Battalion, 4th 
Marines, 3rd Marine Brigade from May 1965 to June 1965.  He 
states that he was stationed near the town of Chu Lai.  At 
that time, his primary duty was as a gunner.  On the day he 
landed at “Red Beach,” he asserts that his unit came under 
enemy attack, and that he witnessed another soldier lose an 
arm in that skirmish.  He does not, however, remember the 
name of the soldier.  He recalls numerous instances when his 
patrol would come under sniper fire, and that “fire fights” 
would ensue.  He says that he believes that he personally 
killed three (3) to four (4) enemy soldiers.  He also reports 
that his unit received mortar fire on approximately four (4) 
occasions, and that he watched as a fellow soldier was killed 
during one of these mortar attacks.  Although he was only 
stationed in the “war zone” of Vietnam for 28 days, the 
veteran argues that he was emotionally traumatized by the 
experience.  He avers that he now suffers from PTSD, and his 
PTSD is a direct result of these inservice incidents.  To 
date, there is no evidence that the RO has attempted to 
verify the veteran’s alleged stressors, or that the United 
States Armed Services Center for Research of Unit Records 
(USASCRUR), formerly the United States Army and Joint Service 
Environmental Support Group (ESG), has been contacted to 
assist in this matter.

The Board acknowledges that the lack of specific times, 
places, and persons in the veteran’s current statements makes 
any request for an USASCRUR confirmation difficult.  
Nevertheless, although he has the burden of submitting 
evidence in support of his claim, the critical evidence may 
be in the control of the Federal Government.  In such 
situations, the VA should be responsible for providing or 
obtaining the material.  Murphy v. Derwinski, 1 Vet.App. 78, 
82 (1990).  In the instant case, the VA should endeavor to 
verify the alleged attack during the veteran’s initial 
landing at “Red Beach,” the numerous sniper attacks and 
resulting fire fights, and the mortar attack that killed a 
soldier in the veteran’s unit.

Upon review of the claims folder, the Board also notes that 
there appears to be a discrepancy as to whether the veteran 
has a current diagnosis of PTSD.  Specifically, in a report 
of his June 1994 examination, the VA examiner stated that the 
veteran suffered from severe PTSD, poly-substance abuse by 
history, and a personality disorder mixed with passive 
aggressive features and borderline.  However, following a 
July 1997 VA examination, the examiner concluded that the 
veteran did not meet the full criteria for a diagnosis of 
PTSD.  The July 1997 examination report contains no reference 
as to the criteria used by the examiner for diagnosing PTSD.

On October 8, 1996, the VA issued a final rule amending that 
portion of its Schedule for Rating Disabilities pertaining to 
mental disorders.  61 Fed.Reg. 52,695 (Oct. 8, 1996).  The 
revised regulation took effect on November 7, 1996, and, 
hence, is in effect at the current time.  This new final rule 
revised 38 C.F.R. §§ 4.125 through 4.129, and replaced 
§ 4.130 with a new section that specifically adopted the 
fourth edition of the DIAGNOSTIC AND STATISTICAL MANUAL OF 
MENTAL DISORDERS, fourth edition (DSM-IV) as the basis for 
the nomenclature of the rating schedule for mental disorders.  
61 Fed.Reg. 52,700 (Nov. 1996 amendments); American 
Psychiatric Association, Diagnostic and Statistical Manual of 
Mental Disorders (4th ed. 1994).

Despite this reference of DSM-IV in the recently revised VA 
general mental disability C.F.R. regulations now in effect, 
the Manual M21-1 PTSD provisions still specifically refer to 
the DSM-III-R as the source for diagnosing psychiatric 
disabilities.  This version of the manual was adopted in 
1987.  See Manual M 21-1, PART VI, Para. 7.46(a) (1995) (sets 
forth detailed diagnostic criteria as required by DSM-III-R 
needed to establish PTSD).  The United States Court of 
Veteran’s Appeals (Court) has held that the Manual M21-1 
provisions in paragraph 7.26 dealing with PTSD are 
substantive rules that are the equivalent of VA regulations.  
However, where the Manual M21-1 imposes requirements not in 
the regulation that are unfavorable to a claimant, those 
additional requirements may not be applied against the 
claimant.  Hayes v. Brown, 5 Vet.App. 60, 67 (1993).  

The criteria in DSM-III-R, as presently adopted by the Manual 
M21-1 and similar provisions in DSM-III, provide 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.  However, the Court 
has found that diagnostic criteria for a stressor now in 
effect for VA adjudication under DSM-IV differ substantially 
from those in DSM-III and DSM-III-R.  The previous 
requirement that the psychologically traumatic event or 
stressor be one that would evoke significant symptoms of 
distress in almost everyone has been deleted, and DSM-IV 
instead requires that the person’s response to the stressor 
involve intense fear, helplessness, or horror.  See Cohen. 

The DSM-IV provides two requirements as to the sufficiency of 
a stressor:  (1) A person must have been exposed to a 
traumatic event in which 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 to others and (2) the 
person’s response must have involved intense fear, 
helplessness, or horror.  In short, the criteria are no 
longer based solely on usual experience and response but is 
individualized (geared to the specific individual’s actual 
experience and response).  Id.  Because of the change in 
criteria in determining the sufficiency of a stressor, the 
veteran should be afforded another VA psychiatric 
examination.

Furthermore, the Board observes the veteran’s claims folder 
does not appear to have been present during his July 1997 
psychiatric evaluation.  Specifically, the May 1997 AMIE 
Compensation and Pension Exam Request Worksheet indicated 
that the claims folder was not required for said examination.  
The development of facts includes a thorough and 
contemporaneous medical examination, one which takes into 
account the records of prior medical treatment, so that the 
evaluation of the claimed disability will be a fully informed 
one.  Green v. Derwinski, 1 Vet.App. 121, 124 (1991).  
Accordingly, the veteran’s claims folder must be made 
available to the examiner for review prior to his psychiatric 
examination.

Finally, a Statement of the Case was issued to the veteran in 
December 1994.  Thereafter, additional evidence was entered 
into the record.  Specifically, medical records from the 
Providence VA Medical Center and the July 1997 examination 
report were received and associated with the claims folder.  
The veteran, however, was not issued a supplemental statement 
of the case and there is no evidence that he waived RO 
consideration of this evidence.  VA regulation provides as 
follows:  

A Supplemental Statement of the Case, so 
identified, will be furnished to the 
appellant and his or her representative, 
if any, when additional pertinent 
evidence is received after a Statement of 
the Case or the most recent Supplemental 
Statement of the Case has been issued, 
when a material defect in the Statement 
of the Case or a prior Supplemental 
Statement of the Case is discovered, or 
when, for any other reason, the Statement 
of the Case or a prior Supplemental 
Statement of the Case is inadequate.

38 C.F.R. § 19.31 (1996).

Under the circumstances of this case, the Board finds that 
additional development is required.  Accordingly, the case is 
REMANDED to the RO for the following:


1.  The RO should contact the veteran and 
request that he provide a detailed 
statement of his alleged stressors in 
Vietnam, including as many specific 
identifying details as possible as to 
where and when the alleged incidents 
occurred, and the names of the persons 
involved.  Concerning the attack at “Red 
Beach” when his unit initially landed, 
the veteran should be asked to provide 
specific details regarding this incident, 
such as the date, the location, detailed 
descriptions of the event, and any other 
identifying information.  He should be 
requested to give the complete name and 
hometown of the Marine who was killed 
during the mortar attack, the approximate 
date of the incident, the unit of the 
individual killed, and his proximity to 
the individual at the time of the 
incident.  With regard to the patrol 
missions and the ensuing fire fights, he 
should be asked to furnish the 
approximate dates of those incidents, the 
names of any other individuals who 
participated in these patrols with him 
(perhaps including the name of the 
commanding officer who ordered the 
patrols), and any other identifying 
information.

2.  The RO should obtain the names and 
addresses of all medical care providers 
who treated the veteran for his 
psychiatric condition since March 1997.  
After securing any necessary release(s), 
the RO should obtain all records not 
already contained in the claims folder.  
All records obtained must be associated 
with the claims folder.

3.  The RO should also contact the 
Director of the National Archives and 
Records Administration (NARA) and request 
morning reports related to the veteran’s 
unit of assignment or any other 
information regarding activities of his 
unit during the time frame cited that 
would shed light on events related to the 
veteran.  Specifically, morning reports 
from May 1965 to June 1965 should be 
obtained.

4.  With the additional information 
obtained, the RO should review the file 
and prepare a summary of all the claimed 
stressors.  This summary and all 
associated documentation provided by the 
veteran and otherwise should be sent to 
the United States Armed Services Center 
for Research of Unit Records (USASCRUR) 
at 7798 Cissna Road, Suite 101, 
Springfield, Virginia 22150-3197 for 
confirmation.  A copy of this Remand 
should accompany this request.

5.  Upon completion of the above action, 
the veteran should be afforded a special 
VA psychiatric examination.  The claims 
folder and a copy of this Remand must be 
made available to the examiner prior to 
the examination in order that he or she 
may review pertinent aspects of the 
veteran’s service and medical history.  
All tests deemed necessary by the 
examiner must be conducted and the 
clinical findings and reasoning which 
form the basis of the opinions requested 
should be clearly set forth.

The purpose of this examination is to 
determine if the veteran currently 
suffers from PTSD.  If the veteran is 
found to have PTSD, the examiner should 
express an opinion for the record on 
whether the veteran’s claimed stressors 
from his military service are 
etiologically related to any current 
PTSD.  The examining physician should 
specifically identify which stressors are 
linked to any diagnosed PTSD and 
determine the sufficiency of the 
stressors as a cause of any PTSD.  The 
examiner should apply the diagnostic 
criteria of both DSM III-R and DSM-IV and 
indicate whether one or the other would 
lead to a different result, and what that 
result would be.  Finally, if the 
examiner finds that the veteran does not 
have PTSD, he should reconcile his/her 
opinion with that of other examiners who 
may have differed with that opinion.

6.  Following completion of the 
foregoing, the RO must review the claims 
folder and ensure that all of the 
foregoing development actions have been 
conducted and completed in full.  If any 
development is incomplete, including if 
the requested examination does not 
include all test reports, special studies 
or opinions requested, appropriate 
corrective action is to be implemented.

7.  When the above development is 
completed, the case should be reviewed by 
the RO.  If the decision remains adverse 
to the veteran, he and his representative 
should be issued a Supplemental Statement 
of the Case and afforded a reasonable 
opportunity to respond.

Thereafter, subject to current appellate procedures, the case 
should be returned to the Board for further appellate 
consideration, if appropriate.  The veteran need take no 
action until he is notified.  The purpose of this REMAND is 
to obtain factual and medical information. The Board 
intimates no opinion, either factual or legal, as to the 
ultimate conclusion warranted in this case.

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.


		
	IRIS S. SHERMAN
	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).
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