Citation NR: 9802115 Decision Date: 01/26/98 Archive Date: 02/02/98 DOCKET NO. 95-29 024A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and appellant’s spouse ATTORNEY FOR THE BOARD W. Sampson INTRODUCTION The veteran's active military service extended from October 1963 to August 1967. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an October 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. That rating decision entitlement to service connection for post-traumatic stress disorder (PTSD). In an October 1995 statement by the veteran, he indicated that he wished to be considered for “nonservice connected pension as a totally disabled person.” This was reiterated in a February 1997 letter to the RO transmitting records from the Social Security Administration to be used in support of his claim for compensation, “and the one for pension.” The issue of entitlement to a permanent and total disability rating for nonservice connected disability pension purposes has not been the subject of a rating decision by the RO, is not properly before the Board at this time and is referred to the RO for appropriate action. REMAND In general, establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303, 3.304 (1996); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Establishing service connection for PTSD requires (1) a current clear medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); (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 specific claimed inservice stressor. Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996); 38 C.F.R. § 3.304(f) (1996). In this case, the veteran is claiming that as a result of a stressor he experienced during the Vietnam war, he now has PTSD. The RO denied service connection because of the failure to present evidence of a verifiable stressor during the veteran's active military service in order to support a diagnosis of PTSD. A May 1997 Hearing Officer’s decision notes that the records failed to describe any duty associated with combat or events which would be recognized as sufficient stressor to establish a basis for the currently diagnosed PTSD. The standard the Hearing Officer used is no longer applicable in the wake of the Court’s recent decision in Cohen v. Brown, 10 Vet. App. 128 (1997), which determined that “the question of the sufficiency of a PTSD stressor . . . is a medical question requiring examination and assessment of the veteran by a mental-health professional.” Id. at 142. In a February 1995 statement, the veteran described his stressful incident in Vietnam as follows: I was in [Vietnam] as a transient waiting for my ship, U.S.S. Pulaski, LST 1088. I was in Tien Sha. Sometime during the months of July & August, 1966, I was out on [night] watch. I thought I heard some fire, I was someone running down the mountain and then, saw someone running my way, I blew his head off as he got closer. He also indicated that at the time of the incident, he was with a man called “Jim,” whose last name and rating he could not recall. An April 1994 consultation sheet from a VA mental health clinic shows a diagnosis of “PTSD - possible from Vietnam experience.” A May 1996 VA general medical examination report questions the veteran's diagnoses of PTSD and schizophrenia. “It appears to me, given the patient’s history, that he has more of borderline personality disorder, but further evaluation will be left to the psychiatrist.” A PTSD worksheet appears to refer to the above stressor as a subjective complaint and notes that the “[v]eteran presents with symptoms consistent with PTSD,” but that he is a confused historian. A VA mental disorders examination report notes that the veteran complains of nightmares of his experiences in Vietnam, shows significant post-traumatic stress disorder symptoms, and indicates that he has PTSD with “stressors being social isolation, chronic nightmares and flashbacks, unemployment, financial. . . .” It is unclear from the medical evidence whether the veteran has PTSD which is attributable to his claimed inservice stressor. The United States Court of Veterans Appeals (Court) has held that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App. 213 (1992). The veteran should therefore be scheduled for another psychiatric examination to determine whether there is a link between any current diagnosis of PTSD and his alleged inservice stressor. The Board notes that the RO has not referred the stressor information provided by the veteran to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), formerly the “United States Army and Joint Services Environmental Support Group” (ESG),in an attempt to verify the claimed stressor. 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 appellant’s claimed stressor. 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 stressors, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2). Accordingly, as the development outlined in Manual M21-1, includes providing the information submitted by the veteran to the USASCRUR, such development is mandatory. In light of the foregoing, the Board would be remiss if it were to attempt to decide the issues on appeal without first obtaining all the pertinent evidence that is missing and scheduling the veteran for another VA disability compensation examination. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is again REMANDED to the RO for the following development: 1. The RO should request from the veteran another statement containing as much detail as possible regarding the stressors to which he was exposed during service. The veteran should be asked to provide specific details of the claimed stressful events during service, such as dates, places, detailed descriptions of the events, his service units in Vietnam, duty assignments and the names and other identifying information concerning any individuals involved in the events. The veteran should be told that the information is necessary to obtain supportive evidence of the stressful events and that failure to respond may result in adverse action. 2. Regardless of the veteran’s response, the RO should review the file and prepare a summary of all the claimed stressors. This summary and all associated documents showing the units to which the veteran was assigned while in Vietnam should be sent to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), formerly the “United States Army and Joint Services Environmental Support Group (ESG)”, 7798 Cissna Road, Springfield, VA 22150. See VA MANUAL M21-1, Part VI, Paragraph 7.46 (1992). They should be requested to provide any information to show whether the veteran was engaged in combat with the enemy and to corroborate the veteran’s alleged stressors. A copy of the veteran’s DD 214 and his 201 file, if available, should also be forwarded to the USASCRUR with the request. 3. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to a stressor or stressors in service, and, if so, the nature of the specific stressor or stressors. The RO must specifically render a finding as to whether the appellant “engaged in combat with the enemy.” 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 it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 4. If, and only if, the RO determines that the record establishes the existence of a stressor or stressors, then the veteran should be scheduled for another VA psychiatric examination. The examiner should be conducted with consideration of the criteria for post-traumatic stress disorder and other psychiatric disorders. The RO must specify, for the examiner, the stressor or stressors that the RO has determined are established by the record. The examiner 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 include a detailed account of all pathology found to be present. If there are different psychiatric disorders than post-traumatic stress disorder, the psychiatrist should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. If a diagnosis of post-traumatic stress disorder is appropriate, the examiner should specify the credible “stressors” that caused the disorder and the evidence upon which they relied to establish the existence of the stressor(s). The examiner should also describe which stressor(s) the veteran reexperiences and how he reexperiences them. The psychiatrist should describe how the symptoms of post-traumatic stress disorder affect his social and industrial capacity. The report of examination should include a complete rationale for all opinions expressed. All necessary special studies or tests including psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory (MMPI) and the Mississippi Scale for Combat- Related Post-Traumatic Stress Disorder are to be accomplished. Copies of the test results should be included with the examination report. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the physician include a definition of the numerical code assigned. Thurber v. Brown, 5 Vet. App. 119 (1993). The diagnosis should be in accordance with the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4TH ed., 1994). The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The psychiatrist should provide complete rationale for all conclusions reached. 5. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the examination reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, they must be returned for corrective action. 38 C.F.R. § 4.2 (1996) (“if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 6. Subsequently, the RO should consider the issue on appeal. In this regard, the RO should give full consideration to whether the issue is well grounded. Once the foregoing has been accomplished and, if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. The Board intimates no opinion as to the ultimate outcome of this case. Further adjudication of the questions on appeal will be postponed until the remand action is completed. 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. 1996) (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. BETTINA S. CALLAWAY 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. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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 -