Citation NR: 9739467 Decision Date: 11/26/97 Archive Date: 12/03/97 DOCKET NO. 96-08 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to special monthly pension based upon the need for regular aid and attendance of another person or at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.L. Rogoff, Associate Counsel INTRODUCTION The veteran served on active duty from March 1943 to January 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 1993 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. PTSD 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. In April 1993, the veteran claimed service connection for PTSD. He stated that he had dreams and flashbacks concerning incidents which occurred when he was in the South Pacific during World War II (W.W.II). He remembered 2 of his fellow soldiers that were captured by the Japanese, tortured and killed. He stated that in his dreams, he saw the eyes of the young Japanese he killed and dreamed about killing others. Treatment records submitted by the veteran in April 1993, revealed multiple diagnoses of PTSD, chronic through the years 1988 to 1993. In December 1992, the veteran reported a recurring dream in which 2 men from his unit were captured, tortured and killed by the Japanese. He indicated that he felt he could have done more to help them. The veteran was referred for psychiatric evaluation by the VA Outpatient Clinic in Pensacola for an examination, performed in May 1993. The veteran reported that he had come back from the War a nervous wreck. He described being in Special Services and being a scout behind enemy lines in the Philippines doing assassinations and guerrilla warfare. He reported killing 4 children, an 80 year old peasant and numerous other traumatic events. He stated that he was told he had battle fatigue and was placed on Valium in 1967. He also reported nightmares and avoidance of crowds and noise. The examiner stated that the veteran’s history was remarkable for mental health involvement since 1966. For the past 6 years, he had received treatment for PTSD at the VA Clinic, Pensacola. The examiner diagnosed PTSD, secondary to W.W.II experiences. In a July 1993 statement, the veteran described an incident where he was sent out on a mission behind enemy lines with two young soldiers who were caught by the enemy, hanged by one leg and had their tongues cut out. He stated that they were supposed to be his rear guard and he found them 12 hours later when he was on his way back. He indicated that Colonel Larmer was his exclusive Commander. He also noted that they killed many Philippine civilians while destroying Japanese ammunition dumps. The National Personnel Records Center reported that the veteran’s 201 file was not available due to a fire in July 1973 at the Center. The veteran’s Enlisted Record and Report of Separation Honorable Discharge indicated that his military occupational specialty was Mess Sergeant. In a December 1993 rating action, the RO denied entitlement to service connection for PTSD. It was noted that the veteran’s alleged stressors were inconsistent with the official service records. The veteran was notified of this decision in February 1994. In a May 1994 letter, the veteran stated that his stressors occurred while part of a special unit. Their orders were verbal and there would not be any documentation of their assignments, which involved eliminating a Red Cross nurse and a homosexual at a rest camp. An individual who lived with veteran wrote to VA in September 1994, stating that he helped the veteran cook and clean. He reported that the veteran slept during the day and talked in his sleep about hunting “Japs”. He also noted that the veteran patrolled the trailer park with his German shepherd and guns 3 times a night. He stated that he was afraid that if he ran into someone he might kill him. It was his belief that the veteran was dangerous and in need of help. In his substantive appeal, the veteran stated that he was a mess sergeant, but he was also part of a secret special unit. He indicated that six soldiers, including himself, were brought into a training session at the beginning of their assignment to the unit. The men were handcuffed to each other and a Colonel told them they were going to learn a lesson in discipline. The Colonel put his gun to the ear of one of the men and shot him. After that incident, he followed the Colonel’s orders for fear that he would end up like the soldier who was shot. His stressors arose because of his involvement with the secret unit, which led to his PTSD. After reviewing the record, it is evident that verification of the veteran’s claimed stressors 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) has not been attempted. 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. Again, 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. Moreover, in June 1995, the veteran submitted an audiocassette tape which he wished to become part of his appeal for service connection for PTSD. This tape was not reviewed by the RO prior to it being certified to the Board for appellate consideration. It appears that after the case was forwarded to the Board by the RO, three additional audiocassettes were submitted by the veteran. The RO did not did not review this new evidence. There is no indication that the veteran waived his right to have this evidence reviewed by the agency of original jurisdiction. 38 U.S.C.A. § 20.1304(c) (West 1991). Accordingly, this evidence is referred to the RO for consideration. Special Monthly Pension With regard to the veteran’s claim for service connection for special monthly pension, the Board notes that his disabilities, all nonservice-connected, were last assigned disability evaluations by the RO in its December 1993 rating determination. His anxiety disorder, also diagnosed as PTSD, was assigned a 30 percent evaluation. Disc disease of the lumbar spine was assigned a 10 percent evaluation. An abscess of the left lower eyelid and residuals of a shell fragment wound of the lower right leg were rated as noncompensable. The combined schedular evaluation is 70 percent for pension purposes. The veteran has been rated as permanently and totally disabled for pension purposes since March 1986. In April 1993, the veteran indicated that he was confined to his home due to a back disability. He requested a VA examination and indicated that records in support of his claim would be forthcoming. The record reflects that the veteran was afforded a VA examination in May 1993 in conjunction with his claim for special monthly pension benefits. The veteran reported that he had problems with his nerves over the past several years. He also complained of severe chest and back pain. The examiner stated that the veteran came to the consultation with his sister via private vehicle. He was not hospitalized or blind. His gait was normal and he was extremely obese. There were no functional limitations of the upper or lower extremities. His low back pain made him unable to bend to pick up objects. It was noted that the veteran lived alone and went out to attend to errands, but mostly stayed at home. He ambulated without restriction. His complaints of constant dizziness could become a problem in the event of hazards or dangers of his daily environment. His restrictions were expected to be permanent and he was found capable of managing benefit payments. In a May 1994 letter, the veteran reported that he had had open heart surgery in June 1993 and that he continued to have severe pain and lacked the strength to walk anything more than a short distance before he was out of breath. He indicated that his condition warranted housebound status. An individual who lived with veteran wrote to VA in September 1994, stating that he helped the veteran cook and clean. It was his belief that the veteran was dangerous and in need of help. In his substantive appeal, the veteran stated that he was practically blind and was unable to drive. He claimed that the benefit was warranted due to his poor eyesight and nervous disorder. A VA examination to determine aid and attendance or housebound status was performed in January 1995. The veteran stated that he had hypertension, a coronary artery bypass graft times three vessel surgery, and a stroke which left him with some weakness in the left lower extremity. He also reported that he had tremors, sleep disorder, nervousness and hypertension. He had some help from an attendant he hired and was brought to the examination by another person. He was not hospitalized. The examiner indicated that the veteran was not blind, but had difficulty reading and seeing, especially at night. It was noted that he had a restricted driving license. The veteran had difficulty walking and with propulsion. Gait was slow with slight dragging of the left lower extremity. There was a tremor on the right upper extremity. Balance was poor and it was noted that he was unable to protect himself because of poor weight bearing, balance and propulsion. He usually went out to walk about 50 to 100 yards, but with difficulty. He was able to feed himself, fasten his clothing, bath and shave with an electric razor. He did not want to use any mechanical aid to help with his walking. He claimed he would rather die than use a cane. The diagnoses were multiple medical problems including coronary artery disease, arteriosclerotic cardiovascular disease, hypertension, status post cerebrovascular accident with left hemiplegia, benign tremors, sleep disorder, anxiety disorder, and degenerative disc disease. That report, while addressing the factors relevant to a determination of whether the veteran is housebound, did not contain sufficient detail to allow for evaluation of the severity of his disabilities. In a statement from the veteran to the RO, received in May 1995, the veteran indicated that he sometimes walked with a cane. He stated that he needed to use a walker, but was trying to get around on his own. He reiterated his claims for aid and attendance. A remand is warranted as there is evidence of record that there are additional disabilities other than those that have been rated, considered, and described by the RO to the veteran in conjunction with his claim. These are status post cerebrovascular accident with left hemiplegia, benign tremors, loss of vision and a sleep disorder. The law requires that there be adequate information of record to rate each of the veteran’s disabilities and to determine whether the criteria for increased ratings for them are met, that all disabilities be rated, and that he be provided with a supplemental statement of the case thereon and on the larger matter overall of entitlement to special monthly pension based upon the need for regular aid and attendance or at the housebound rate, if the RO's action remains adverse. Roberts v. Derwinski, 2 Vet. App. 387 (1992); 38 U.S.C.A. § 7105(d)(1)(A), (B), and (C). Therefore, pursuant to VA’s duty to assist the appellant in the development of facts pertinent to his claims 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 issues prepared and certified for appellate review pending a remand of the case to the RO for further development as follows: 1. The RO should review and transcribe the audio cassette tapes submitted by the veteran in support of his claims. 2. The RO should request that the veteran 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 two soldiers that were captured and killed by the Japanese. 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 cannot 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). 3. After obtaining the foregoing requested information from the appellant, the RO should forward it together with copies of his service records (on file), a copy of his record of service (DD-214) and a copy of the transcript from his audiocassettes 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. 4. 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. 5. 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 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 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. 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 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. VA examinations should also be conducted to determine the nature, extent, and severity of the veteran's status post cerebrovascular accident with left hemiplegia, benign tremors, loss of vision and sleep disorder. It is suggested that the veteran be afforded examinations by a cardiologist, neurologist, and an ophthalmologist. The claims file and separate copies of this remand must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examinations. Any pertinent tests and studies necessary to determine the existence, nature, extent, and severity of the disabilities should be conducted to the extent required in order to rate these disabilities adequately under the VA Schedule for Rating Disabilities. 8. The RO should provide the veteran with a VA aid and attendance examination to determine and explain, chiefly, the impact that the veteran's disabilities have on his ability to care for himself, perform necessary activities of daily living, and protect himself from the hazards incident to his daily environment. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner must be requested to express an opinion as to whether the veteran’s disabilities in the aggregate have rendered him in need of the regular aid and attendance of another individual to enable to accomplish daily functions of care and/or if such disabilities have rendered the veteran housebound. Any opinion expressed must be accompanied by a complete rationale. 9. Thereafter, the RO should review the claims file to ensure that all of the foregoing 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. 10. 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 and entitlement to special monthly pension based upon the need for regular aid and attendance of another person or at the housebound rate. If the benefits sought on appeal are 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 -