Citation Nr: 9810286 Decision Date: 04/02/98 Archive Date: 04/23/98 DOCKET NO. 96-36 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama 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 W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from January 1966 to January 1968. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. That rating decision denied service connection for post-traumatic stress disorder (PTSD). In October 1997, the veteran appeared at a hearing before the undersigned Acting Board Member via video teleconference. In the veteran's June 1996 notice of disagreement, he indicated that he wished to reopen his claims for Agent Orange. This issue has not been developed for appeal and is not appropriately before he Board at this time. It is referred to the RO for action deemed appropriate. REMAND Service connection for PTSD requires: (1) medical evidence establishing a clear diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1996); see also VA ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL M21-1), Part VI, 11.38 (Aug. 26, 1996) (reiterating the three PTSD service- connection requirements set forth in regulation § 3.304(f) and specifically requiring “credible supporting evidence that the claimed inservice stressor actually occurred”). The MANUAL M21-1 provisions in paragraph 11.38 are substantive rules which are “the equivalent of [VA] [r]egulations”. See Hayes v. Brown, 5 Vet. App. 60, 67 (1993) (citing Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991)). 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 U.S.C.A. § 1154(b) (West 1991); see also Gregory v. Brown, 8 Vet. App. 563 (1996); Collette v. Brown, 82 F.3d 389 (Fed.Cir. 1996). The MANUAL M21-1, as recently revised, provides that the required “credible supporting evidence” of a combat stressor “may be obtained from” service records or “other sources.” See Moreau v. Brown, 9 Vet. App. 389 (1996); see also Doran v. Brown, 6 Vet. App. 283 (1994). However, although corroborating evidence of a stressor is not restricted to service records, if the claimed stressor is related to combat, and in the absence of information to the contrary, receipt of any of the following individual decorations will be considered evidence of participation in a stressful episode: Air Force Cross Air Medal with “V” Device Army Commendation Medal with “V” Device Bronze Star Medal with “V” Device Combat Action Ribbon Combat Infantryman Badge Combat Medical Badge Distinguished Flying Cross Distinguished Service Cross Joint Service Commendation Medal with “V” Device Medal of Honor Navy Commendation Medal with “V” Device Navy Cross Purple Heart Silver Star See MANUAL M21-1, paragraph 11.38(c) (1). The regulations governing service connection for PTSD differ from those governing service connection for other conditions because they require evidence of an inservice stressor rather than evidence of “incurrence or aggravation” of a disease or injury in service or within a post-service presumptive period. The United States Court of Veterans Appeals (Court) has held that a physician’s opinion of causal nexus, in certain circumstances, to establish inservice or presumptive- period incurrence or aggravation even when the examination on which the opinion was based was made many years after service. See e.g., ZN v. Brown, 6 Vet. App. 183 (1994). However, since the requirements in § 3.304(f) for a “link, established by medical evidence, between current symptomatology and the claimed inservice stressor” and for “credible supporting evidence that the claimed inservice stressor actually occurred,” indicate that something more than medical nexus is required, the Court recently held in Moreau, supra, that “credible supporting evidence of the actual occurrence of an inservice stressor cannot consist solely of after-the-fact medical nexus evidence.” In addition, although the above-cited legal criteria may sometimes be at odds with the medical findings of an individual physician, the Board may disregard such medical findings if it determines on a factual basis that the alleged event (or series of events) is not of sufficient gravity or severity to qualify as a stressor. Wilson v. Derwinski, 2 Vet. App. 614, 616-18 (1992) (affirming a Board decision which noted that whether an alleged event is a stressor is a question of fact for the Board to decide involving factors as much historical as psychological); see also Wood v. Derwinski, 1 Vet. App. 190 (1991) (noting that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences). In this case, the veteran is essentially claiming that as a result of his stressors he experienced during his active service in Vietnam, he now has PTSD. He has alleged several stressors to support his claim. These include (1) as he was about to get in a helicopter, it was hit and blew up; (2) he observed friends and soldiers getting shot and killed, specifically a “Howard Johnson” and “Sgt. Bessy”; (3) once, as squad leader, as he was about to check fox holes to find out how many men were left and how much ammunition each had, another man, “Fencil” volunteered to do this for him and he was hit by machine gunfire; (4) a man named “McFarland” from Chicago was hit and killed; and (5) he was exposed to mortar fire. In an April 1994 VA mental disorders examination, the veteran's wife indicated to the examiner that she felt the veteran was having symptoms of PTSD, including nightmares, recollection of war events and different personality; however, the veteran denied any nightmares, had no signs of exaggerated startle reflex or recollection of intrusive thoughts. The diagnosis was alcohol dependency, rule out PTSD. The examination noted that psychological testing should be conducted to rule out PTSD. In February 1995, the veteran was afforded a VA PTSD examination in which he described the five stressors listed above. His subjective complaints included dreams of combat experiences, problems getting along with other people, flashbacks including an incident while washing his car during which he saw three helicopters flying in combat formation. He also stated that the treelines reminded him of Vietnam. He described nightmares when he would hit his sleeping companions. The diagnosis was “PTSD, delayed type,” and the examiner noted that the veteran had been coming to the outpatient PTSD program. Although outpatient treatment records were requested, the request was for records dated from June 1995, and did not include any prior records of treatment. An attempt should be made to secure any prior records of treatment and associate these with the claims file. The Board is unable to determine from the February 1995 VA examination whether the veteran has PTSD. There is no record of any testing performed to support the diagnosis, and although there is a listing of the veteran's claimed stressors, the report of examination does not relate his diagnosis to his service in Vietnam, or to any of his stressors. The 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 be afforded another VA examination to determine whether he has PTSD, and whether there is any link between a diagnosis of PTSD and any verified stressors. In the veteran's October 1997 video hearing, he indicated another stressor, consisting of another marine named Damron who was wounded and who he helped into a helicopter. Although he indicated some difficulty in being able to specifically identify the stressors which he believed caused his PTSD, and agreed that it was more the whole experience of Vietnam which caused his claimed PTSD, he has been able to recall specific incidents. The Board believes that it would be helpful to his case if he were asked to provide another statement of the specific traumatic incidents which produced the stress he is claiming has resulted in PTSD. He also indicated that he was first diagnosed with PTSD when he moved to Chicago in 1970 at the VA hospital downtown. These records have not been associated with the claims file. An attempt should be made to find these records and associate them with the claims file. Finally the Board note that while the veteran was provided a statement of the case to include the general regulations regarding service connection, he was not provided the applicable regulations specifically pertaining to a claim for PTSD. A statement of the case must contain a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination. 38 C.F.R. § 19.29(b) (1997). For the reasons noted above and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should request the veteran, with the assistance of his representative, to identify the names, addresses, and approximate dates of treatment for all health care providers who may possess additional records pertinent to his claim. With any necessary authorization from the veteran, the RO should attempt to obtain copies of those treatment records identified by the veteran which have not been previously secured. 2. Upon receipt of a satisfactory response, the RO should obtain from the veteran a properly executed authorization for the release of private medical records, if any. The Board is particularly interested in any records referred to by the veteran in his October 1997 video hearing of treatment at the Chicago VA Medical Center in approximately 1970, and any records of his participation in a PTSD outpatient treatment program at the VA outpatient clinic in Tuskegee, Alabama. The RO should then seek to obtain copies of all relevant VA records, specifically those involving hospitalizations and outpatient treatment for the veteran’s psychiatric disorder. 3. The RO should request from the veteran, with the assistance of his representative, 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. 4. 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 following address: Commandant of the Marine Corps Headquarters, United States Marine Corps (Code MMRB) Quantico, VA 22134-0001 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 personnel file, if available, should also be forwarded with the request. 5. 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. 6. The veteran should be scheduled for a VA psychiatric examination. The examination 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. 7. 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 (1997) (“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). 8. 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. 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. JAMES W. ENGLE Acting 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) (1997). - 2 -