Citation Nr: 9823596 Decision Date: 07/09/98 Archive Date: 08/04/98 DOCKET NO. 96-00 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. S. Hughes INTRODUCTION The veteran served on active duty from January 1964 to January 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Thereafter, the veteran relocated to Reno, Nevada, and his claims file was transferred to the Reno, Nevada, RO. REMAND The veteran asserts that service connection for PTSD is warranted because his current PTSD is etiologically related to his experiences as a wheeled vehicle mechanic in the United States Army serving in the Republic of Vietnam. Testimony presented by the veteran and his wife at his February 1998 Travel Board hearing as well as his prior statements reflect the veteran’s contention that, in denying his claim for service connection for PTSD, the RO failed to obtain and review all of his treatment records. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (1997). In addition, the United State Court of Veterans Appeals (Court) has articulated that, in addressing claims for service connection for PTSD, consideration must first be given to the evidence required to demonstrate the existence of an alleged stressor, and then, if such stressor is found, a determination as to whether it is of the quality required to support a diagnosis of PTSD must be made. See Zarycki v. Brown, 6 Vet. App. 91 (1993); West v. Brown, 7 Vet. App. 70 (1994). In Zarycki, the Court held that in addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event was sufficient to give rise to PTSD. Zarycki v. Brown, 6 Vet. App. 91, 98-99. In West v. Brown, 7 Vet. App. 70 (1994), the Court held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. The Board notes that a recent case from the Court, Cohen v. Brown, 10 Vet. App. 128 (1997), alters the analysis in connection with claims for service connection for PTSD. Significantly, the Court 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 and 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, 11.38 (1996) (same PTSD criteria as DSM-III-R). The Court took judicial notice of the effect of the shift in diagnostic criteria. The major effect is this: the criteria have changed 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. Cohen v. Brown, 10 Vet. App. 128, 153 (1997), (Nebeker, Chief Judge, concurring by way of synopsis). The Court has 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 153. The Court went on to indicate that “the Board must return a diagnostic report to the RO for a further report by the examining doctor or other mental health professional when the Board believes the report does not accord with applicable DSM criteria.” Id. The Board notes that the veteran has not submitted a stressor statement. At the June 1994 VA examination for PTSD, the veteran reported that, although he performed guard duty during part of his Vietnam service, he did not get involved in direct combat. He stated that, while he was on guard duty, he was not involved in combat and was not confronted by the enemy. However, he recalled that he was exposed to gunfire because an artillery base close to his base was constantly firing. The veteran also recalled one incident during a fire fight in which a lieutenant was shot. Thereafter, a June 1976 VA outpatient treatment report reflects that the veteran witnessed the death/fatality of a first lieutenant and some of his buddies were killed driving a truck in the Idrang Valley. Similarly, a June 1996 PTSD Development Sheet associated with his VA outpatient treatment records reflects that the veteran was not sure if the first lieutenant had died and he could not remember the names of his buddies who had been killed during the “Battle of Idrang Valley.” The Board notes that the veteran has not provided an adequate amount of detail regarding his asserted stressors. Specifics such as dates, places, and names of other servicemen present is necessary. The Board also notes that the RO has not attempted to obtain the veteran’s service personnel records in order to verify the alleged stressors. The veteran should be afforded the opportunity to provide specific information to substantiate his claimed in-service stressors and the RO should seek verification of the alleged stressors from all available sources, to include the veteran’s service personnel records. If it is established that the veteran "engaged in combat with the enemy", 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 current record does not contain evidence that would indicate on its face that the claimant “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. A February 1998 letter and attached treatment notes, dated in June and December 1996, from the veteran’s treating psychiatrist at the Reno VA Medical Center (VAMC) reflects this physician’s diagnoses of the veteran’s PTSD as well as bipolar and alcohol abuse disorders as secondary to PTSD. The treatment reports shows that the examiner was of the opinion that the veteran’s “combat experiences in Vietnam and current associated symptomatology” supported a diagnosis of PTSD. However, while this examiner diagnosed the veteran with PTSD, 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. In this regard, the Court in Moreau held 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. Accordingly, it is clear that further clinical inquiry as to whether PTSD is present is warranted. At his February 1998 Travel Board hearing, the veteran’s wife testified that the RO had not obtained all of the veteran’s VA treatment records. Specifically, she stated that records from the VA Medical Center (VAMC) in Reno and Livermore as well as medical reports from Stockton, California, State Mental Health and West Hills Hospital had not been received and were “missing.” The RO should contact the veteran and request that he provide the names of the mental health facilities where he has received treatment and the dates of such treatment. Thereafter, the RO should attempt to obtain the relevant treatment records. 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 the 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. Therefore, pursuant to VA’s duty to assist the appellant in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1997), the Board is deferring adjudication of the issue of entitlement to service connection for PTSD pending a remand of the case to the RO for further development as follows: 1. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him since his discharge from service for PTSD. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request which have not been previously secured. The attention of the RO is specifically directed to treatment of the veteran at VA medical facilities and the dates of such treatment. 2. In addition, the RO should request that the veteran provide any additional details regarding the stressors to which he alleges he was exposed in service. These details should include specifics as to dates, places, detailed descriptions of events, and any other identifying information concerning other individuals involved in the events, including their full names, ranks, units of assignment or other identifying detail. The veteran must be asked to be as specific as possible because, without such details, an adequate search for verifying information cannot be conducted. 3. Following completion of the above development, the RO should review the claims file and prepare a summary of all of the claimed stressors reported in previous statements and examination reports, including those detailed above. This summary and all associated documents, including the veteran’s service personnel records, should be sent to the United States Armed Services Center for Research of Unit Records (USASCRUR) (formerly known as United States Army and Joint Service Environmental Support Group (ESG)), 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 responses received. 4. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the evidence 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. The examiner should comment on the following: (1) Is any stressor found to be established by the RO sufficient to produce PTSD. (2) Are the remaining diagnostic criteria to support the diagnosis of PTSD satisfied. (3) Is there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the RO from the record and found to be sufficient to produce PTSD by the examiner. 6. Thereafter, the RO should review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 7. After undertaking any development deemed essential in addition to that requested above, the RO should readjudicate the issue of entitlement to service connection for PTSD in light of the veteran's testimony at his Board hearing and the additional evidence added to the record thereafter. 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. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the RO. 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. ROBERT E. SULLIVAN 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) (1996). - 2 -