Citation Nr: 9820408 Decision Date: 07/02/98 Archive Date: 07/13/98 DOCKET NO. 96-28 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico 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 C. M. Flatley, Counsel INTRODUCTION The veteran had active service from November 1967 to October 1970 and from December 1970 to December 1973. REMAND Service connection for post-traumatic stress disorder (PTSD) requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence of an in-service stressor(s), and a link established by medical evidence between the in-service stressor(s) and the current PTSD. 38 C.F.R. § 3.304(f) (1997). In this case, the clinical data of record contain a diagnosis of PTSD. The Board of Veterans' Appeals (Board) notes that other than the veteran's own statements, there is no evidence regarding the claimed in-service stressors in the claims file. The question of whether the veteran was exposed to a stressor in service is a factual determination and Department of Veterans Affairs (VA) adjudicators are not bound to accept such statements simply because treating medical providers have done so. Cohen v. Brown, 10 Vet. App. 128 (1997); 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). While a diagnosis of PTSD has been rendered in this case, critical elements of this diagnosis, 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 United States Court of Veterans Appeals (Court) in Zarycki v. Brown, 6 Vet. App. 91 (1993), set forth the framework for establishing the presence of a recognizable stressor which is the essential prerequisite to support the diagnosis of PTSD. The Court 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 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. The record must first contain recognized military citations or other supportive evidence to establish that he "engaged in combat with the enemy." If the determination with respect to this step is affirmative, then (and only then), a second step requires that the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development or corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," e.g., credible, and "consistent with the circumstances, conditions, or hardships of such service." Zarycki at 98. In this case, the record does not contain evidence that would indicate on its face that the veteran “engaged in combat with the enemy.” In an elaboration and clarification of Zarycki, the Court noted in Moreau that since Zarycki, as well as Doran v. Brown, 6 Vet. App. 283 (1994) and West v. Brown, 7 Vet. App. 70 (1994), changes in VA Adjudication Procedure Manual M21-1 (Manual M-21-1) had rendered certain portions of those decisions no longer operative insofar as they were grounded in subsequently revised manual provisions. Further, the Court had held in Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996) that as a matter of law, “if the claimed stressor is not combat-related, [the] appellant’s lay testimony regarding the in-service stressors is insufficient to establish the occurrence of the stressor.” In Moreau, the Court, citing the MANUAL M21-1 Part VI, para. 7.46 (Oct. 11, 1995) (now para. 11.38) 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. Further, 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. In addition, the Board 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 (1997). See 61 Fed.Reg. 52695-52702 (1996). The provisions of Manual M21-1 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). In Cohen, the Court took judicial notice of the effect of the shift in diagnostic criteria, which essentially changed from an objective standard, i.e., “would evoke...in almost anyone,” in assessing whether a stressor is sufficient to trigger PTSD, to a subjective one. 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, accordingly, is now a clinical determination for the examining mental health professional. In this case, the veteran’s periods of service included two tours of duty in Vietnam. His DD-214, Report of Separation from service, reflects his receipt of the Vietnam Campaign Medal. In a private medical report dated in July 1995, the veteran reported the presence of PTSD symptomatology since service, with no treatment prior to April 1994, when he participated in a VA substance abuse program. It was also noted that the veteran continued in weekly group therapy sessions and occasional individual sessions. The veteran provided information regarding his claimed in- service stressors in statements dated in April 1995. He provided further details of the locations of his assignments and claimed stressors in an regional office (RO) hearing conducted in October 1996. He stated that he was assigned to temporary duty to other units, including the “1st Cav” and the “101st Airborne.” Transcript (T.) at 3. He stated that he performed “tenaman” jobs in and around the Saigon area, that he traveled by helicopter, that he helped load bodies, and that his unit was fired upon, including at the “40 Signal Battalion,” now located in Fort Huachuca. T. at 3, 4. The veteran specified that when he was in DaNang, he was associated with Company B, 40th Signal Battalion, which was subject to mortar attacks. T. at 4. He also reported that he complained of PTSD to a doctor at Fort Huachuca, to no avail. T. at 5. He reported that during his first tour of duty in Vietnam, from October 1968 to October 1969, he was assigned to the 1st signal Brigade, 40th Battalion, Company A and was stationed at Long Binh, Ben Hoa, and was then moved to the 69th Signal Battalion, working in and around Saigon. T. at 6, 7. He noted that he was at Long Binh when an ammunitions dump was blown up during “TET.” T. at 7. He noted that members of his signal platoon had been injured. T. at 8. He stated that he viewed combat from the air while traveling by helicopter between Long Binh and Saigon. T. at 9. He also noted that during his second tour of duty in Vietnam, from June 1972 to approximately May 1973, he was stationed in DaNang and that action was always close-by. T. at 10. He also stated that during that time, he was assigned to the “101st” working with cable at Phu Bai and that small arms fire occurred. T. at 10. He stated that he saw dead bodies and body bags under several circumstances. T. at 9, 10. He noted that he was assigned to the “25th Infantry” in Chu Chi and the “1st Cav” and “101st” in Phu Bai. T. at 12. He also provided the name of a friend who was wounded in Vietnam. T. at 13. There is no indication of record that an attempt was made to verify the information provided by the veteran in an attempt to establish an in-service stressor. In this regard, the veteran is cautioned that the VA's duty to assist is not a one-way street. If a veteran desires help, especially in verifying stressors, he must provide the factual data necessary to conduct the required search. Wood, 1 Vet. App. at 193. In letters dated in November 1995 and November 1997, a VA physician indicated that the veteran was under VA care for PTSD and recommended an examination for compensation purposes. In light of the Court decisions outlined above, the Board determines that an additional VA psychiatric examination is warranted after attempted verification of the appellant’s alleged in-service stressors by the RO. West, 7 Vet. App. at 77-8. A copy of a decision rendered by the Social Security Administration dated in July 1996 reflects that the veteran was considered disabled due to his PTSD from August 1994. In a November 1996 letter, the veteran’s then representative provided the name and unit of assignment of the friend of the veteran’s who was wounded. In a November 1996 letter, a VA social worker noted that the veteran had been participating in treatment at a Vet Center since 1990. In its January 1997 supplemental statement of the case, the RO cited DSM III-R and the 1992 edition of Manual M21-1. Accordingly, this case is REMANDED to the RO for the following: 1. Although the veteran already submitted a statement regarding his claimed stressors, the RO should provide the veteran with an opportunity to submit another statement with as much detail as possible regarding any and all stressful events to which he was allegedly exposed in service. He should be asked to provide specific details about the events such as precise dates, places and identifying information such as names, ranks and units of assignment of any individuals involved in those events. 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 cannot be conducted. He should be informed of the probative value of any lay statements from persons with knowledge of the alleged stressful events. The RO should attempt to assist the veteran in obtaining such statements. In this respect, the Board takes the 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 onerous task. Wood, 1 Vet. App. at 193. This information is vital to the claim. All attempts by the RO to fulfill this request should be documented. 2. The RO should attempt to obtain additional information for submission to the U. S. Armed Services Center for Research of Unit Records (USASCRUR), such as in-service daily morning reports. Such information should include a request to the National Archives and Records Administration for pertinent morning reports for pertinent periods, verifying daily personnel actions. All attempts by the RO to fulfill this request should be documented. 3. The RO should obtain from the Social Security Administration the records pertinent to the veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 4. Regardless of additional information provided by the veteran, the RO should review the file and prepare a summary of all of the claimed stressors already reported in previous statements, examination reports, and the October 1996 RO hearing transcript. This summary and all associated documents, including his service personnel records and the names of the units to which the veteran was assigned, should be sent to the U. S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road Suite 101, Springfield, Virginia 22150- 3197. USASCRUR should be requested to provide any information available which might corroborate the veteran's alleged stressors. The RO must carry out any action or follow-up required by the that agency for an appropriate search. All attempts by the RO to fulfill this request should be documented. 5. The RO should contact the veteran and ask that he provide any additional information regarding treatment for an acquired psychiatric disorder, to include PTSD, including since 1990. After any necessary authorization is obtained, copies of any post-service treatment records not already of record should be obtained. The veteran should be informed that he may also supply other evidence, such as additional lay statements, in support of his claim. All attempts by the RO to fulfill this request should be documented. 6. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the veteran was engaged in combat and whether a claimed stressor was related to such combat or the nature of the specific stressor or stressors otherwise. If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify the in-service stressor or stressors that have been established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 7. The RO should schedule a special VA psychiatric examination to determine the nature of any existing psychiatric disorders. The entire claims folder and a separate copy of this remand MUST be reviewed by the examiner in conjunction with the examination. In determining whether the veteran has PTSD due to an in-service stressor, the examiner is hereby notified that in circumstances in which verification of the occurrence of the stressor is required (i.e., the veteran did not engage in combat, or the alleged stressor was not combat related), only the verified history detailed in the reports provided by the RO may be relied upon. The examination report should reflect review of pertinent material in the claims folder. All necessary studies or tests, to include psychological testing and evaluation with PTSD sub- scales, should be accomplished. If a diagnosis of PTSD is deemed appropriate, the examiner should specify the credible "stressors" that caused the disorder, the evidence relied upon to establish the existence of the stressor(s), and indicate how the veteran otherwise meets the diagnostic criteria for PTSD. If additional psychiatric disorders are identified, the examiner 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 so specified. The report of the examination should include a complete rationale for all opinions expressed. 8. The RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the psychiatric examination report to ensure that any diagnosis of PTSD was based on the verified stressor. The RO should implement corrective procedures as to any Board remand request with which there has not been full compliance. 9. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for PTSD, in light of the law cited above. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case which contains any additional applicable laws and regulations and provided the opportunity to respond thereto. The case should then be returned to the Board, if in order, after compliance with customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this 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 or by the Court 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. V. L. Jordan 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 -