Citation Nr: 9815046 Decision Date: 05/14/98 Archive Date: 05/27/98 DOCKET NO. 97-21 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for post-traumatic stress disorder. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a skin disorder secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his family physician ATTORNEY FOR THE BOARD K. S. Hughes INTRODUCTION The veteran served on active duty from February 1964 to February 1966, including service in Vietnam from September 1965 until February 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Based on certain statements made during his October 1997 hearing before the undersigned, it would appear that the veteran currently seeks service connection for an anxiety disorder. Inasmuch as this issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification, and, if necessary, appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his experiences during his period of active duty in the Republic of Vietnam are productive of PTSD. He further contends that he has a skin disorder, which flares up annually during the spring season, which is the result of exposure to Agent Orange during his Vietnam service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that he has submitted evidence which is new and material to his claim for service connection for PTSD and the claim as it pertains to this issue is reopened and remanded to the RO for a de novo review. It is also the decision of the Board that he has not submitted new and material evidence to reopen his previously denied claim of service connection for a skin disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. By rating action in May 1994, the RO denied the appellant's claim of entitlement to service connection for PTSD. He was notified of this decision and of his right to appeal but a timely appeal was not received. 3. The evidence received since the May 1994 RO denial of service connection for PTSD includes hearing testimony provided in October 1997 which contains verifiable stressor information. 4. The evidence submitted since the May 1994 rating decision, when viewed with all evidence submitted before the May 1994 rating decision, presents a reasonable possibility of changing the outcome as it relates the veteran’s PTSD. 5. By rating action in October 1979, the RO denied the appellant's claim of entitlement to service connection for a skin disorder secondary to Agent Orange exposure. He was notified of this decision and of his right to appeal but a timely appeal was not received. 6. The evidence submitted since the October 1979 RO denial of service connection for a skin disorder secondary to Agent Orange exposure is cumulative and redundant with regard to this claim, and, when viewed with all evidence submitted before the October 1979 rating decision, raises no reasonable possibility of a change in the outcome of that decision. CONCLUSION OF LAW 1. The May 1994 rating decision denying service connection for PTSD is final. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. 3.104(a) (1997). 2. The evidence submitted since the May 1994 decision by the RO which denied service connection for PTSD is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991 & Supp. 1997); 38 C.F.R. § 3.156(a) (1997). 3. The October 1979 rating decision denying service connection for a skin disorder secondary to Agent Orange exposure is final. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. 3.104(a) (1997). 4. The evidence submitted since the October 1979 decision by the RO which denied service connection for a skin disorder secondary to Agent Orange exposure is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991 & Supp. 1997); 38 C.F.R. § 3.156(a) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pertinent Law and Regulations Service Connection: Pertinent law and regulations provide that entitlement to service connection may be established for a disability which is incurred in or aggravated by the veteran’s period of active service. 38 U.S.C.A. § 1131 (West 1991). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1997). A veteran who had active service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to a herbicide agent containing dioxin, including Agent Orange, unless there is affirmative evidence to establish that the veteran was not so exposed during that service. 38 C.F.R. § 3.307(a)(6). Regulations provide a list of diseases that are considered to be associated with herbicide exposure for purposes of presumptive service connection. The specified diseases that are considered to be associated with herbicide exposure and which may be presumptively service connected even though there is no record of such disease during service are chloracne or other acneiform disease consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers of the lung, bronchus, larynx or trachea and certain specified soft tissue sarcomas. 38 C.F.R. § 3.309(e). Further, the Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition other than those for which the Secretary has specifically determined that a presumption of service connection is warranted. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). However, the Court has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). New and Material Evidence: When a claim has been disallowed by the RO and becomes final, it may not thereafter be reopened and allowed, and no claim based upon the same factual basis shall be considered. The law grants a period of 1 year from the date of notice of the result of the initial determination for the filing of a notice of disagreement; otherwise, that determination becomes final and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302 (1997). Thereafter, if new and material evidence is presented or secured with respect to a claim which has been disallowed, then the claim will be reopened and its former disposition reviewed. 38 C.F.R. § 5108. To reopen a previously and finally disallowed claim, the Board must first determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (1997). The United States Court of Veterans Appeals (Court) has also explained that evidence is “material” where it is “relevant to and probative of the issue at hand” and where it is of “sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Sklar v. Brown, 5 Vet. App. 140, 145 (1993); Cox v. Brown, 5 Vet. App. 95, 98 (1993); and Colvin, 1 Vet. App. at 174. The Court has held that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273, 283-285 (1996). It is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. Evans, at 283-284. As to a service connection claim, the Court in Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table), described three elements of a well-grounded claim: Competent evidence of inservice incurrence or aggravation of a disease or injury; a current disability; and a causal nexus between the inservice incurrence or aggravation and the current disability. If the evidence is “new” and “probative,” then it must be determined whether such evidence presents a reasonable possibility of changing the outcome of the prior decision based on all the evidence. If these conditions are met, then the evidence is both “new” and “material.” Evans, at 284- 86. Factual Background Post-Traumatic Stress Disorder The evidence which was of record at the time of the RO’s May 1994 rating decision will be briefly summarized below. The veteran’s December 1963 enlistment examination report and February 1966 separation examination report include no history of depression or excessive worry or nervous trouble of any sort. Both reports reflect that he was psychiatrically normal upon clinical evaluation. The veteran’s service medical records are silent with regard to psychiatric complaints or treatment. Service personnel records reflect that the veteran served in Vietnam from September 30, 1965, until February 17, 1966, and that principal duty was radio operator for “HqCo1stSqdn4thCAV.” His military occupational specialty was armor crewman from July 1964 until August 1964 when he became a radio operator. He received the Vietnam Service Medal. There is no objective evidence that he received any medal or citation indicative of combat service. Upon VA psychiatric examination in August 1979, the veteran complained of general nervousness, reliving war experiences, and occasional nightmares. The examiner noted that the veteran had counseling for alcoholism between November 1978 and January 1979. It was noted that the veteran was neat, clean, and cooperative. He looked healthy and was fully oriented as to time, place, and person. He was of good intelligence and free of delusions, hallucinations, ideas of reference, persecutory ideations, and depression. He did not suffer from survivor guilt and derived no feelings of depression on the basis of guilt secondary to war experiences. The examiner also noted that there was some degree of ideological involvement with the Vietnam war experiences in the form of reliving such experiences. The veteran had mentioned that he “wanted to forget it” but had not succeeded and stated that war experiences were coming back into his mind and caused him nightmares and insomnia. The examiner noted that there was no sign of tangible organic brain involvement and the impression was anxiety neurosis exacerbated by alcoholism. An April 1994 letter from the veteran’s private physician, R. Kozoll, M.D., indicates that he had been the veteran’s family physician since 1979. Dr. Kozoll stated that the purpose of this letter was to provide medical information to support the veteran’s underlying anxiety disorder consistent with PTSD and related to his prior military experience. Dr. Kozoll reported the veteran’s history of “traumatic injuries consistent with lack of attention and not associated with excessive use of alcohol or other drugs of abuse.” It was noted that the veteran was first diagnosed with anxiety neurosis in August 1983 and persistent anxiety symptoms included dyspnea, back “tension,” a “hollow” feeling in his abdomen, and severe anxiety. Dr. Kozoll noted that the veteran provided no history of an anxiety disorder prior to his military service and related it to his tour of duty in the Vietnam war. He also noted that the veteran discussed incidents of his service with considerable difficulty and exacerbation of his anxiety level. In a April 1994 statement, the veteran reported that he had been assigned to Headquarters, 1st Squadron, 4th Cavalry. He stated that he had blocked out most incidents, however, he often experienced flashbacks and remembered some of them. He recalled an attack by the Vietcong on January 1, 1966, which had left many Americans and Vietcong dead and injured. He remembered that a Sergeant Johnson and some of his crew were killed while trying to retrieve a booby trapped flag. The veteran also reported an attack which occurred while he was assigned to co-drive a 5 ton truck loaded with ammunition and another attack which occurred while he was assigned to a check point which left several Vietnamese dead. He did not indicate the dates during which these incidents took place. Upon consideration of the foregoing, the RO denied service connection for PTSD by a May 1994 rating decision. This determination was on the basis that it had not been established that the veteran had PTSD and, if he actually had PTSD, that it was probably caused by his military service, including six months in Vietnam. The veteran did not appeal this decision and it became final. The additional evidence which has been submitted since the May 1994 rating decision will be summarized below. The veteran submitted a statement in October 1996. He recalled an attack after the Christmas/New Years cease fire in which mortar rounds were fired by the Vietcong who had attacked on both the inner and outer perimeters. He stated that Vietcong bodies were found mangled in fences and concertina wire so that other Vietcong could climb over them. The veteran remembered the castration of a Vietcong prisoner who died moments later. Private treatment records from June 1979 to August 1996 include hospitalization and treatment for various injuries as well as treatment for anxiety beginning in June 1986. VA outpatient treatment records reflect that that the veteran sought psychiatric treatment in December 1977 for excessive use of alcohol and possible depression and anxiety. The examiner noted that the veteran “refers to terror of ten years ago.” Private treatment records from August 1983 show that the veteran complained of nervousness, tremulousness, and uncontrolled jerking movements. He reported a history of intermittent heavy drinking. The diagnosis was anxiety and muscle twitches probably secondary to ETOH (alcohol). Upon subsequent treatment the following day, the veteran reported a history of trouble with his nerves since being in Vietnam. Upon consideration of the foregoing, service connection for PTSD due to herbicide exposure was denied by a February 1997 rating decision. The veteran disagreed with this determination and requested a personal hearing. During the October 1997 hearing before a member of the Board, the veteran’s private physician, Dr. Kozoll, stated that he did not pretend to be an expert on PTSD and did not have credentials relating to psychologic or psychiatric expertise. Dr. Kozoll recalled that he had been acquainted with the veteran since 1979 and reported the veteran’s history of multiple traumatic injuries consistent with lack of attention but not associated with excessive use of alcohol or other drugs of abuse. The physician stated that he first diagnosed the veteran with anxiety neurosis in August 1983. He testified that the veteran had persistent symptoms consistent with chronic anxiety including shortness of breath, back tension, a hollow felling in his stomach, and perceived severe anxiety. Dr. Kozoll stated that of particular significance was the fact that no external basis for his anxiety could be ascertained at the time the veteran was experiencing the worst of his symptoms. He stated that the veteran gave no history of an anxiety disorder prior to his military service and related its beginning with a tour of duty in Vietnam. Dr. Kozoll stated that his opinion as to the relationship between the veteran’s anxiety disorder and service was based on the history reported to him by the veteran. The veteran’s testimony during his October 1997 hearing provided additional details regarding the stressors he allegedly experienced during his tour of duty in Vietnam. He recalled that, either just before or right after Christmas 1965, a mortar attack lasted through the night and, the next morning, Sergeant Johnson’s tank headed to retrieve a booby trapped Vietcong flag and the entire crew was killed. The veteran remembered that, sometime in November 1965, his convoy was attacked while hauling ammunition. He also recalled that, sometime in early January 1966, he was at Checkpoint Charlie guarding the entrance and a mortar attack started, resulting in American and Vietnamese casualties. The veteran stated that he was with the Headquarters Company, 1st Squadron, 4th Cavalry, 1st Infantry Division during his tour of duty in Vietnam. Skin Disorder Secondary to Agent Orange Exposure The evidence which was of record at the time of the RO’s October 1979 rating decision will be briefly summarized below. The veteran’s December 1963 enlistment examination report and February 1966 separation examination report include no history of skin disease and both reports reflect that his skin and lymphatic system were clinically normal upon evaluation. The veteran’s service medical records are silent with regard to any complaints or treatment attributable to the skin. Upon VA examination in August 1979, the examiner noted that the veteran’s skin was entirely normal over his entire body without any evidence of dermatitis or exfoliation. Upon consideration of the foregoing, by an October 1979 rating decision, service connection for chronic disease or disorder causing peeling of the skin as residual of exposure to Agent Orange was denied. The veteran did not appeal this determination and it became final. The additional evidence which has been submitted since the October 1979 rating decision will be summarized below. In a March 1994 statement, the veteran claimed that he had a skin disorder all over his body, particularly peeling of his hands due to Agent Orange/PTSD. Thereafter, in an April 1994 statement, the veteran recalled moving through the jungle in Vietnam and being exposed to the herbicide Agent Orange. He stated that his hands would get wet and mushy as he moved through the foliage. The veteran claimed that his hands began to peel after this exposure and they have continued to peel to the present. Private treatment records, dated from June 1979 to August 1996, are silent with regard to complaints of or treatment for a skin disorder. Additional private treatment records from another physician, dated in August 1983, are similarly silent with regard to the veteran’s skin. In May 1980, the veteran completed a VA questionnaire for inclusion in the initial data base for veteran’s with possible exposure to toxic chemicals. In this questionnaire, the veteran indicated that he experienced yearly skin lesions on the plantar surface of his hands and feet. He described it as a drying out of the skin with peeling, itching, and erythema. The veteran noted that there were no present lesions. Upon clinical evaluation in conjunction with this questionnaire, the examiner noted that there were no lesions at the time of examination and that the skin lesions described sounded like they might be dyshidrosis. VA outpatient treatment records, dated from December 1977 to January 1979, are silent with respect to complaints of or treatment for the skin. Upon consideration of the foregoing, the RO denied service connection for a skin condition due to herbicide exposure by a February 1997 rating decision. The veteran disagreed with this determination and requested a personal hearing. During his May 1997 personal hearing, the veteran testified that his hands began peeling in March 1966. He claimed that this did not occur prior to his tour of duty in Vietnam and has continued since his return form Vietnam. The veteran stated that his skin disorder flares up during the spring, heals after about two months, and reappears during the same time every year. At the time of his October 1997 hearing before a Member of the Board, the veteran’s testimony with respect to his alleged skin disorder was essentially the same as that which was previously of record. Additionally, Dr. Kozoll did not testify with regard to this issue. Analysis Post-Traumatic Stress Disorder The evidence submitted since the May 1994 RO decision is new in that it was not of record or considered at the time of the May 1994 decision. Furthermore, after a careful and thorough review of the record, it is concluded that the evidence is material to reopen the claim. Application of the holding in Evans v. Brown, requires that the specified bases for the final disallowance must be considered in determining whether the newly submitted evidence is probative. Evans, at 284. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. Evans, at 283-284. The specified basis for the denial in 1994 was that it had not been established that the veteran has PTSD and, if he actually has PTSD, that it was probably caused by his military service, including six months in Vietnam. The new evidence includes testimony from the veteran and his private physician, Dr. Kozoll, who has been treating him for a psychiatric disorder for over twelve years. Dr. Kozoll testified that no external basis for his anxiety could be ascertained at the time the veteran was experiencing the worst of his symptoms. In this regard, the Board notes Dr. Kozoll’s April 1994 letter in which he stated that the veteran’s underlying anxiety disorder was consistent with PTSD and related to his prior military service. The veteran’s testimony included additional details of the stressful events which he experienced during service. In the Board's opinion, this additional evidence is new and probative and presents a reasonable possibility of changing the outcome in this case. Accordingly, there is new and material evidence sufficient to reopen the claim for service connection for PTSD. Skin Disorder Secondary to Agent Orange Exposure With regards to the issue of whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a skin disorder secondary to Agent Orange exposure, the evidence received by VA since the October 1979 rating action consists of the veteran's written statements in support of his claim and his testimony at a May 1997 personal hearing and at an October 1997 hearing before a Member of the Board. After reviewing this evidence, the Board finds that it is not new and material with regard to his claim for service connection for a skin disorder and provides no new evidentiary basis to reopen this claim. The issue of exposure to Agent Orange is not in contention, as the veteran’s exposure to this defoliating agent is presumed due to his active service in the Republic of Vietnam during the Vietnam era. The content of the veteran's written statements and hearing testimony show that he served in Vietnam and that he claimed to have been exposed to Agent Orange during this tour of duty. These statements also contain his contention that he currently has a skin disorder and that this skin disorder is attributable to active service. In this regard, the Board notes that although a lay witness is competent under the law to describe symptoms he has observed or experienced, he is not competent to diagnose a skin disorder or to offer a medical opinion attributing any current skin pathology to service, as this requires medical expertise. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Mere lay assertions of medical etiology are not competent evidence sufficient to reopen a previously denied claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). In the absence of diagnosis of a skin disorder by a competent medical professional as well as competent medical evidence attributing this pathology to service or to an incident in service, the Board concludes that the evidence added to the record since the prior unappealed rating decision does not raise a reasonable possibility of an outcome different from that reached by the RO in October 1979. As evidence that is both new and material has not been submitted, the application to reopen a claim of entitlement to service connection for a skin disorder must be denied. ORDER Inasmuch as new and material evidence has been presented to reopen a claim of entitlement to service connection for PTSD, the benefit sought on appeal is granted to this extent. The veteran's application to reopen his claim of service connection for a skin disorder secondary to Agent Orange exposure is denied. REMAND As new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for PTSD, the entire evidentiary record must be considered. Prior to consideration of the merits of the veteran’s claim, the Board has determined that further development is in order, consistent with the laws and regulations and Court decisions governing adjudication of PTSD claims. First, the Board notes that service connection for PTSD requires 1) medical evidence establishing a clear diagnosis of the condition, 2) credible supporting evidence of an in- service stressor(s), and 3) a link established by medical evidence between the in-service stressor(s) and the current PTSD. 38 C.F.R. § 3.304(f) (1997). As stated above, the veteran’s claim has been reopened based on written statements and testimony from the veteran and his private physician, Dr. Kozoll. The existence of this evidence in the current records is sufficient to support a preliminary finding that the claim for service connection for PTSD is well-grounded under the case law from the Court. See Cohen v. Brown, 10 Vet. App. 128 (1997); see also Zarycki v. Brown, 6 Vet. App. 91 (1993). Thus, VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. §5107(a) (West 1991). The Board notes, however, that other than the veteran's own statements, the record contains no verification of any of the claimed inservice stressors. The question of whether the veteran was exposed to a stressor in service is a factual determination and VA adjudicators are not bound to accept such statements simply because treating medical providers have done so. Cohen v. Brown, supra; Moreau v. Brown, 9 Vet. App. 389 (1996); Wood v. Derwinski, 1 Vet. App. 190 (1991) (affirmed on reconsideration, 1 Vet. App. 406 (1991)); Wilson v. Derwinski, 2 Vet. App. 614 (1992). In the instant case, while the veteran’s private physician has indicated that the veteran has PTSD, critical elements of this opinion, most fundamentally those concerning the existence of a stressor or stressors, appear to be based wholly upon statements of history provided to the examiner by the veteran. The Court in Zarycki, 6 Vet. App. 91, noted that the evidence necessary to establish the existence of the recognizable stressor during service will vary depending on whether or not the veteran was “engaged in combat with the enemy” under 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304 (1997). Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized military citations or other service department evidence. In other words, the claimant's bare assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this fact. In this case, the current record does not contain evidence that would indicate on its face that the veteran “engaged in combat with the enemy.” The Court held in Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996) as a matter of law that “if the claimed stressor is not combat-related, [the] appellants lay testimony regarding the in-service stressors is insufficient to establish the occurrence of the stressor.” In Moreau v. Brown, 9 Vet. App. 389 (1996), the Court, citing the MANUAL M21-1 Part VA, 7.46.c (Oct. 11, 1995) held that “credible supporting evidence” of a noncombat stressor “may be obtained from” service records or “other sources.” The Court, however, also held that while the MANUAL M21-1 provisions did not expressly state whether the veteran’s testimony standing alone could constitute credible evidence of the actual occurrence of a noncombat stressor, the Court’s holding in Dizoglio mandated that the veteran’s testimony by itself could not constitute “credible supporting evidence” of the actual existence of the noncombat stressor as a matter of law. Furthermore, the Court held in Moreau, that the fact that a medical opinion was provided relating PTSD to events the veteran described in service could not constitute “credible supporting evidence” of the existence of the claimed noncombat stressor as a matter of law. The VA's duty to assist includes attempting to verify claimed inservice stressors. The Board recognizes that the RO did attempt to obtain information from the appellant regarding stressors that he experienced during service and that the appellant’s service personnel records are in the claims file. However, it appears that the RO did not follow up on the stressor information provided by the appellant by attempting to obtain verification of the appellant’s alleged stressors from the United States Armed Services Center for Research of Unit Records (USASCRUR). In fact, in the June 1997 Supplemental Statement of the Case the RO and Hearing Officer in essence stated that the veteran had provided information which was too general in nature to allow for verification. In this regard, the Board notes that, at his October 1997 hearing, the veteran provided the following detailed accounts of the claimed inservice stressors: 1) He recalled that, either just before or right after Christmas 1965, a mortar attack lasted through the night and, the next morning, Sergeant Johnson’s entire tank crew was killed while attempting to retrieve a booby trapped Vietcong flag. 2) The veteran remembered that, sometime in November 1965, his convoy was attacked while hauling ammunition. 3) He also recalled that, sometime in early January 1966, he was at Checkpoint Charlie guarding the entrance and a mortar attack started, resulting in American and Vietnamese casualties. The record confirms that the veteran was with Headquarters Company, 1st Squadron, 4th Cavalry during his tour of duty in Vietnam. The Board is of the opinion that the RO should attempt to verify the above-asserted stressful events, consistent with 38 U.S.C.A. § 5107(b). Based on the results of its attempts at corroboration of the veteran’s stressors, the RO should also complete any further indicated development. In particular, the Board notes that if 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 as to whether the remaining elements required to support a diagnosis of PTSD have been met. In such a referral, the adjudicators should specify to the examiner 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 would be 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. In that regard the Board notes the case of Cohen v. Brown, 10 Vet. App. 128 (1997), which alters the analysis in connection with claims of entitlement to service connection for PTSD. Significantly, the Court points out that VA has adopted the fourth edition of the American Psychiatric Associations’ 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, para. 11.38 (1996) same PTSD criteria as DSM-III-R). The Court found that DSM-IV altered the criteria for assessing the adequacy of the stressor 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. The Court 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 138. 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. In the instant case, it is not clear whether Dr. Kozoll’s opinion with regard to the veteran’s PTSD is based on application of the applicable DSM criteria. In light of the foregoing, the Board finds that further development, as specified below, is warranted. Accordingly, the case is REMANDED to the RO for the following: 1. The veteran should be contacted and again requested to provide a detailed statement containing verifiable information regarding the events claimed as "stressors" during his military service. He should be asked to provide specific details about the events such as dates, places, and identifying information such as names, ranks, and units of assignment of any individuals involved in those events. In particular, the veteran should be asked to provide any additional information relating to the alleged stressors laid out above. He should be advised that the 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 can not be conducted. He should also be informed of the probative value of any lay statements from these persons or others with knowledge of the alleged stressful events. The RO should assist the veteran in obtaining such statements. 2. Regardless of the veteran's response, the RO should review the file and prepare a summary of all of the claimed stressors already reported in previous statements and examination reports, including those detailed above. This summary and all associated documents, including his service personnel records, should be sent to the U.S. Armed Services Center for Research of Unit Records (USASCRUR)), 7798 Cissna Road, Springfield, VA 22150. The USASCRUR should be requested to provide any information available which might corroborate the veteran's alleged stressors. The RO should accomplish all follow-up indicated in any received responses. 3. The RO should obtain from the veteran a list of all doctors and hospitals, both private and VA, that have treated him for any psychiatric disorder, including PTSD, and which contains the dates and locations of treatment since his separation from military service. The RO should obtain all necessary signed releases and obtain any records that are not currently associated with the claims file. 4. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the record establishes the existence of a stressor or stressors and specify what in-service stressor or stressors have been 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 record establishes the existence of an in-service stressor or stressors, then the RO should arrange for the veteran to be scheduled for a psychiatric examination to determine the nature of any existing psychiatric disorders. The claims folder must be made available to the examiner prior to examination. The RO must specify for the examiner the stressor or stressors that it has determined are established by the record and the examiner must be instructed that only those event(s) may be considered for the purpose of determining whether exposure to a stressor in service has resulted in current psychiatric symptoms and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. The examination report should reflect review of pertinent material in the claims folder. Any necessary studies or tests should be accomplished. If a diagnosis of PTSD is deemed appropriate, the examiners should state (1) whether a 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. 6. After undertaking any development deemed essential in addition to that requested above, the RO should adjudicate the issue of entitlement to service connection for PTSD on a de novo basis. 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. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the outcome of the veteran’s case, pending completion of the requested development. 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. GARY L. GICK 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that 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) (1997). - 2 -