Citation Nr: 9817338 Decision Date: 06/04/98 Archive Date: 06/15/98 DOCKET NO. 94-48 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Saadat, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to May 1969 and from January 1971 to January 1974. By a July 1994 rating action, the aforementioned regional office (RO) denied, in relevant part, service connection for post-traumatic stress disorder (PTSD). In August 1994, the veteran filed a notice of disagreement and the RO issued a statement of the case in October 1994. The veteran perfected his appeal in November 1994. By an October 1995 rating action, the RO determined that new and material evidence had not been submitted to “reopen” the claim concerning service connection for PTSD. Supplemental statements of the case were issued in October 1995 and January 1997. In February 1997 the veteran testified before a local hearing officer and the RO issued another supplemental statement of the case. In July 1997, the Board of Veterans' Appeals (Board) remanded the veteran's claim for additional development. In a November 1997 supplemental statement of the case, the RO continued to deny service connection for PTSD. REMAND The veteran essentially contends that he is entitled to service connection for PTSD, arising from various experiences during his service in Vietnam. As noted in the prior remand, the veteran had undergone a psychiatric examination at the Asheville VAMC in August 1995. The examiner’s impression was that the veteran had PTSD. In April 1996, the veteran was again examined and the diagnostic impression included PTSD. However, in March 1994, a VA examiner determined that the veteran could not be definitively diagnosed as having PTSD as a result of his experiences in Vietnam. The examiner concluded, in part, that the evidence of record did not reflect a clearly traumatic stressor which would have been outside the range of usual human experience. In its previous remand, the Board requested, in part, that the veteran be afforded another VA psychiatric examination. The RO subsequently decided not to schedule this examination, because the veteran had not responded to a request for information and as a result, the U.S. Armed Services Center for Research of Unit Records (USASCRUR) had not been able to verify the veteran's alleged stressors. One of the veteran's alleged stressors was that he was struck by grenade shrapnel while out in the field repairing weapons. Upon further review of the veteran's service medical records, the Board notes that he was treated for a shrapnel wound in his left shoulder in May 1969. In view of this, the Board believes another VA examination is necessary to confirm the diagnosis of PTSD and to determine whether this stressor in particular may be linked to the diagnosis. As noted in the prior Remand, it appears that the VA examiner’s conclusion in March 1994 was based on the criteria for diagnosing PTSD as adopted in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, third edition (DSM- III). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1981). On October 8, 1996, the VA issued a final rule amending that portion of its Schedule for Rating Disabilities pertaining to mental disorders. 61 Fed.Reg. 52,695 (Oct. 8, 1996). The revised regulation took effect on November 7, 1996, and, hence, is in effect at the current time. This new final rule revised 38 C.F.R. §§ 4.125 through 4.129, and replaced § 4.130 with a new section that specifically adopted the fourth edition of the DSM (DSM-IV) as the basis for the nomenclature of the rating schedule for mental disorders. 61 Fed.Reg. 52,700 (Nov. 1996 amendments); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Despite this reference of DSM-IV in the recently revised VA general mental disability C.F.R. regulations now in effect, the Manual M21-1 PTSD provisions still specifically refer to the DSM-III-R. This version of the manual was adopted in 1987. See Manual M 21-1, PART VI, Para. 7.46(a) (1995) (sets forth detailed diagnostic criteria as required by DSM-III-R needed to establish PTSD). The Court of Veteran’s Appeals (Court) has held that the Manual M21-1 provisions in paragraph 7.26 dealing with PTSD are substantive rules that are the equivalent of VA regulations. The adoption of the specific PTSD criteria in May 1993 rendered moot the Manual M21-1 provisions regarding PTSD adjudication except where the manual is more favorable to a claimant. Where the Manual M21-1 imposes requirements not in the regulation that are unfavorable to a claimant, those additional requirements may not be applied against the claimant. Hayes v. Brown, 5 Vet.App. 60, 67 (1993). The criteria in DSM-III-R, as presently adopted by the Manual M21-1 and similar provisions in DSM-III, provide that an essential feature of a diagnosis of PTSD is the development of characteristic symptoms following an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone. However, the Court has found that diagnostic criteria for a stressor now in effect for VA adjudication under DSM-IV differ substantially from those in DSM-III and DSM-III-R. The previous requirement that the psychologically traumatic event or stressor be one that would evoke significant symptoms of distress in almost everyone has been deleted, and DSM-IV instead requires that the person’s response to the stressor involve intense fear, helplessness, or horror. Cohen v. Brown, No. 94-661, p. 18 (U. S. Vet. App. March 7, 1997) The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been exposed to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or to others and (2) the person’s response must have involved intense fear, helplessness, or horror. In short, the criteria are no longer based solely on usual experience and response but is individualized (geared to the specific individual’s actual experience and response). Id. Because of the change in criteria in determining the sufficiency of a stressor, a new examination for VA purposes is required in this case. This time, the examiner should specifically review the stressor involving shrapnel injury alleged by the veteran. During the March 1994 examination for VA purposes, the veteran stated, in part, that during his one year in Vietnam, he sometimes performed weapon repairs in the field. The veteran reported “not much” direct combat experience, but stated that he once received superficial wounds on one occasion from grenade shrapnel. As noted above, the veteran's service medical records indicate that he sought treatment for a shrapnel wound to the left shoulder in May 1969. The Board also notes that the RO last received medical records reflecting psychiatric treatment of the veteran in October 1997. To ensure that the veteran's claim will receive a fully informed evaluation, clinical data taking into account subsequent treatment for psychiatric symptoms since October 1997 should be obtained and reviewed. Under the circumstances, the Board finds that further development is required, and the case is remanded to the RO for the following action. 1. The veteran should be asked to provide the names and addresses of all medical providers from whom he has been treated for psychiatric symptoms since October 1997. All available records, including those from the VAMCs in Salisbury and Asheville, should be obtained. Once obtained, all records must be associated with the claims folder. 2. Upon completion of the above action, the veteran should be afforded a special VA psychiatric examination. The purpose of this examination is to determine if the veteran currently suffers from PTSD. If the veteran is found to have PTSD, the examiner should express an opinion for the record on whether the veteran’s claimed stressor from his military service (involving a shrapnel wound) is etiologically related to any current PTSD. The examining physician should specifically identify if the “shrapnel wound” stressor is linked to any diagnosed PTSD and determine the sufficiency of the “shrapnel wound” stressor as a cause of any PTSD. The examiner should apply the diagnostic criteria of both DSM III-R and DSM-IV and indicate whether one or the other would lead to a different result, and what that result would be. All tests deemed necessary by the examiner must be conducted and the clinical findings and reasoning which form the basis of the opinions requested should be clearly set forth. The claims folder and a copy of this Remand must be made available to the examiner prior to the examination in order that he or she may review pertinent aspects of the veteran’s service and medical history. 3. Upon receipt of the examination report, the RO should review the report to ensure that it is adequate for rating purposes. If not, the RO should return the examination report to the examining physician and request that all questions be answered. 4. Regarding the veteran’s claim for service connection for PTSD, the RO’s attention is directed to the recent decision of the Court in the case of Cohen v. Brown, No. 94-661 (U. S. Vet. App. March 7, 1997). Therein, the Court held that adoption of new regulations based on the criteria of DSM-IV had drastically changed the way the VA was to adjudicate service connection for PTSD. The Court further held that the version most favorable to the appellant, either 38 C.F.R. §§ 4.125 through 4.130 (Effective November 7, 1996) or M21-1, PART VI, Para. 7.46(a) (1995), would apply in the adjudication of service connection for PTSD. Id. at 15. If the determination on the issue of entitlement to service connection for PTSD remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and given a reasonable opportunity to respond. In doing so, the RO should specifically cite the new criteria, 38 C.F.R. §§ 4.125 through 4.130, and the old criteria and provide reasons and bases determining which one is most favorable to the veteran. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran need take no further action until he is informed. The purpose of this REMAND is to obtain additional medical evidence and to afford due process. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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. 1998) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Iris S. Sherman Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997). - 2 -