Citation Nr: 9824997 Decision Date: 08/20/98 Archive Date: 07/27/01 DOCKET NO. 94-36 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Hugh F. Daly, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. McGovern, Associate Counsel INTRODUCTION The veteran had active service from March 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the December 1992 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a nervous condition, to include PTSD. By rating decision dated in March 1971, the RO denied entitlement to service connection for a nervous condition because the veteran's disability consisted of immature and inadequate personality which was a constitutional or developmental abnormality that was not considered a disability under the law. The veteran was informed of this decision by letter dated in April 1971 and he did not appeal. By rating decision dated in April 1983, the RO confirmed the denial of service connection for a personality disorder. The veteran was informed of this determination in May 1983 and he did not appeal. As he has now been diagnosed with several additional psychiatric disorders which are considered disabilities under the law, the issue now before the Board is properly stated as entitlement to service connection for a psychiatric disorder, to include PTSD. REMAND Initially, the Board notes that it appears that additional relevant service medical and personnel records exist. Other than the enlistment and the October 1970 "AR635-212" examination reports, the only service medical record in the claims file consists of a psychiatric evaluation conducted in October 1970. It was noted that this October 1970 psychiatric evaluation was furnished for the purpose of potential incorporation in board proceedings. The psychiatric evaluation report shows that the veteran had been in the Vietnam for three weeks to one month, that the veteran was referred by his command for psychiatric evaluation in connection with administrative board proceedings, and that the commander's evaluation and the veteran's health records were reviewed by the examiner. It is noted that the commander's evaluation is not of record and that no other health records, except the enlistment and the October 1970 "AR635-212" examination reports, are currently of record. The October 1970 psychiatric evaluation report notes that the veteran had been using drugs since age 17 and that, although he had only been in Vietnam for three weeks, he had been using drugs and had been investigated by the Criminal Investigation Division. The examiner reported that the veteran had made a suicide gesture while stationed in Germany the previous year, that he was diagnosed with immature personality, that he was offered a discharge for unsuitability at that time but refused to take it, that he had made two suicide gestures since arriving in Vietnam approximately three weeks earlier, and that he would now accept a discharge for unsuitability. On examination, the veteran was fully oriented, alert, cooperative, and had normal motor behavior. The examiner noted that his speech was coherent, his mood was neutral, and his affect was appropriate. It was also noted that there was no evidence of an overt thought disorder or perceptual defect, that memory was intact, that judgment was poor, that insight was minimal, that intelligence was considered to be dull, and that there was no evidence of psychosis or neurosis. The examiner stated that the veteran demonstrated an immature, emotionally unstable personality and was not considered "rehabilitable." The examiner concluded that the veteran was mentally competent to withstand board proceedings; the veteran was psychiatrically cleared for processing for separation; and discharge for unsuitability was recommended. At the "AR635-212" examination conducted two weeks later in October 1970, the veteran reported that he had attempted suicide and that he had had a drug or narcotic habit. However, he also stated that he was in good health and that he had not had nervous trouble of any sort, depression or excessive worry, frequent or terrifying nightmares, or frequent trouble sleeping. The examiner noted that the veteran had been "smacking heroin daily and taking 4 BT's daily." The examiner also noted that the veteran had attempted suicide in 1969 in Landstuhl, Germany and "once here." Psychiatric examination was noted to be abnormal. The examiner stated "see psychiatric note." The diagnoses included immature inadequate personality, and the veteran was deemed qualified for retention "under prov AR 40-501." The Board notes that there was no psychiatric note other than the psychiatric evaluation report dated two weeks earlier in October 1970 and that the veteran's service records show that he was discharged on December 1, 1970. The veteran has reported on several occasions that he was hospitalized in service in Germany at an Army and a Navy hospital and at Bad Kreuznach Hospital in September 1969 and June 1970 and in Chu Lai Vietnam in 1970. Again, the only treatment record, other than the enlistment and October 1970 "AR635-212" examination reports, is the October 1970 psychiatric evaluation. The RO attempted to obtain medical records in February 1971, but that was only a few months after separation. Therefore, another attempt to obtain the records is warranted. At the June 1997 VA examination, the veteran reported that he got into trouble with drugs and alcohol in Vietnam and that, when he left Vietnam, he was up for a court martial for drug possession and for discharging weapons in the compound. The claims file includes no service personnel records that include any evidence regarding disciplinary actions or a court martial. As noted above, the veteran was diagnosed with immature inadequate personality in service. The post-service diagnoses include alcohol addiction, schizoid personality, dysthymic disorder, depression, major depression with psychotic features/with underlying borderline personality disorder, personality disorder, bipolar affective disorder, and PTSD. The veteran claims that service connection is warranted for PTSD and the record contains current diagnoses of PTSD. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor(s). 38 C.F.R. § 3.304(f) (1997). In addition, the United States 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 West, 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. See also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In the instant case, while PTSD has been diagnosed, critical elements of this diagnosis, most fundamentally those concerning the existence of a stressor or stressors, appear to be based upon statements of history provided by the veteran. The veteran has provided statements and personal testimony regarding events in service which, he argues, are the foundation (stressors) of his current PTSD. The reported stressors include an incident in Germany when a drunk serviceman tried to rape the veteran in his bunk. The veteran has reported that the serviceman pulled down the veteran's underwear and fondled him, that he pushed this man out of his bed, that the veteran "gave him a thrashing," and that the next day the serviceman retaliated and beat him up. He stated that people called him a coward and "daisy" as a result of this incident and that he was harassed by the man who did it. He testified that he got to the point where he could not eat, that he was scared and throwing up all the time, that he tried to kill himself, and that it was shortly after this incident that he started abusing alcohol and drugs. Hearing Transcript (Tr.) at 3. He reported that he tried to talk to his Sergeant and commanding officer but that they said that "since there was no penetration and the guy was drunk he did not know what he was doing" and they left it at that. Tr. at 3. The veteran was unsure whether a report was made of the attempted rape and he stated that no charges were ever filed. Tr. at 3. The veteran testified that he could name his assailant. Tr. at 10. The VA Adjudication Manual M21-1 (M21-1) provides that the required "credible supporting evidence" of a non-combat stressor may be obtained from service records or "other sources." Specific to claims based upon personal assault, M21-1, part III, 5.14(c), provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. In addition, the Manual notes that "behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor." Examples of such behavior changes include changes in performance, evidence of substance or alcohol abuse, and increased or decreased use of prescription medications. In a letter dated in December 1996, the RO requested additional evidence such as statements from comrades who can attest to facts surrounding the alleged incident of attempted rape. He did not respond. The Board is of the opinion that the veteran's complete service personnel records would be useful in this regard. The veteran has also asserted that he was in combat. He claims that he was exposed to fire fights and enemy fire, and that on one occasion, when they were trying to get a body count, a South Korean officer said that he would do it and he returned with burlap bags full of enemy soldiers' heads which he dumped on the ground at the fire base. The veteran reported that this made him vomit. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f). If the evidence does not show that he was engaged in combat with the enemy or that the claimed stressors are related to such combat, there must be corroborative evidence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 1991); Zarycki v. Brown, 6 Vet. App. 91 (1993). The veteran's DA Form 20, Enlisted Qualification Record, and DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, show that the veteran served in Germany from August 1969 to July 1970 and that he served in Vietnam as a combat engineer from September 1970 to November 1970. He was only in Vietnam for about one month prior to the October 1970 psychiatric evaluation during which discharge for unsuitability was recommended. The DA Form 20, Enlisted Qualification Record, shows the veteran served in an "unnamed campaign," citing a Department of the Army (DA) message of August 1970 as authority; however, according to the available service records the veteran did not arrive in Vietnam until September 1970. The veteran's service records also show that he was awarded the National Defense Service Medal and the Vietnam Service Medal, neither of which signifies combat. However, a specific determination must be made as to whether the veteran engaged in combat with the enemy. See Gaines v. West, No. 97-39 (U.S. Vet. App. Aug. 6, 1998). After the RO has attempted to verify the claimed stressors, the veteran should be afforded a VA psychiatric examination to clarify whether the veteran in fact has PTSD related to corroborated stressful events of his service, particularly in light of the regulatory changes pertinent to the adequacy of verified stressors. See 38 C.F.R. §§ 4.125, 4.126 (1997); Cohen v. Brown, 10 Vet. App. 128 (1997). It is noted that the record includes medical evidence which relates other psychiatric disorders to service or aggravation therein. In light of the new evidence obtained, it should also be determined whether any other psychiatric disorder was as likely as not incurred in or aggravated by service. VA and private physicians have indicated that the veteran had pre- service psychiatric disorders and adjustment difficulties. However, the veteran has testified that he did not have any nervous disorders prior to service. Tr. at 1, 2. If necessary the RO must address the matter of whether a psychiatric disorder pre-existed service, whether clear and unmistakable evidence has been submitted to rebut the presumption of soundness, and whether any pre-existing disorder was aggravated by service. See 38 C.F.R. §§ 3.304(b), 3.306 (1997). The veteran has reported on several occasions that he is receiving Social Security Administration disability benefits for a psychiatric disorder and unemployability. See Tr. at 7. It does not appear that the RO attempted to obtain from the Social Security Administration the records pertinent to the veteran's claim(s) for disability benefits. Such an attempt is warranted. The veteran has reported that he was treated at the Salt Lake City, Utah VA Medical Center (MC) in 1973 or 1974 as an outpatient for one and a half years. He has also reportedly been treated by a Dr. T. Vonholle in 1991 for three or four sessions. At the June 1997 VA examination, it was noted that the veteran had most recently been hospitalized two and a half years earlier at Christ Hospital. Finally, it appears that the veteran may have undergone continued treatment at the Mental Health Services West facility and it is unclear whether all records from that facility have been obtained. It does not appear that an attempt has been made to obtain the records of the above noted treatment. Additionally, a 1973 release summary from Wyoming State Hospital that is of record is barely legible; a legible copy of this report and any additional available records should be requested from the Wyoming State Hospital. Therefore, in order to ensure that the record is fully developed, this case is REMANDED to the RO for the following: 1. The RO should obtain from the Social Security Administration the records pertinent to the veteran's claim(s) for Social Security disability benefits as well as all medical records relied upon concerning that claim. 2. The RO should attempt to obtain a legible copy of the 1973 Wyoming State Hospital release summary and all other available records from that facility. 3. The RO should contact the veteran and request that he report all treatment and evaluation that he received in service for any psychiatric disorder, including the dates and locations of any such treatment, particularly any hospitalizations in Germany or Vietnam, providing the names and locations of the hospitals to the best of his recollection. The RO should then attempt to obtain any additional medical records from all available sources including any records of hospitalization for psychiatric problems in Germany and/or Vietnam. The RO also should obtain copies of any service personnel, administrative or disciplinary records to include the evaluation report made by the veteran's commander in Vietnam; any statements, reports or other documents regarding the veteran's behavior, performance, and the like while he was in service; any reports regarding a CID investigation involving the veteran; any records regarding the veteran's discharge; copies of inservice performance evaluations; any disciplinary, court martial, or board proceeding records; travel orders or vouchers which show when the veteran departed for and arrived in Vietnam and show when he departed from Vietnam and arrived back in the United States, and any evidence regarding whether the veteran had combat service. The RO also should try to obtain a copy of DA Message 28821017 Aug 70 from the service department or other appropriate source. 4. The RO should contact the veteran and request that he identify all treatment and evaluation he has received for any nervous problems prior to and since service, including the names and addresses of all physicians and facilities that have treated or evaluated him. After obtaining appropriate authorization, the RO should attempt to obtain any medical records identified that are not already of record, specifically to include those from the Salt Lake City, Utah VAMC since 1973, from Dr. T. Vonholle dated in approximately 1991, from Christ Hospital, and from Mental Health Services West. The RO also should obtain all relevant treatment records not already associated with the claims file from the Cincinnati, Ohio, VAMC since 1997. 5. The veteran should be asked to provide any additional information possible regarding the stressful events claimed to have caused PTSD and to identify potential alternative sources for supporting evidence regarding the stressors he alleges occurred in service. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events, including the name, rank and unit of the perpetrator of the claimed sexual assault and where and where and when the assault too place. The RO inquiry should include possible sources listed in M21-1, part III, 5.14(c). Based on information provided regarding the claimed perpetrator of the sexual assault, the RO should try to verify that the individual and the veteran were located at the same place when the incident purportedly took place. The veteran is advised that this information is 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. 6. 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 the veteran's previous statements and treatment records. This summary, copies of the veteran's various stressor statements, all associated documents, and the veteran's DD Form 214 and service personnel records, should be sent to the 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 also request that the USASCRUR provide information, including any unit histories or similar documents, regarding whether Company D, 26th Engineer Battalion, was involved in combat from September to (and including) November 1970, the time during which the veteran was assigned to that company and battalion as a combat engineer. If the USASCRUR is unable to verify any stressor(s) due to a lack of specificity, it should so state. The RO should take any necessary follow-up action. 7. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether (a) the veteran was engaged in combat with the enemy; and (b) if the veteran was not engaged in combat with the enemy or if he is claiming a noncombat stressor, whether the existence of any of the claimed stressors is adequately established by the record. The RO must 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. However, the RO is advised that the sufficiency of any claimed stressor is a medical determination. 8. Thereafter, the RO should schedule a special VA psychiatric examination to determine the nature and etiology of all existing psychiatric disorders. The claims file, a separate copy of this remand, and the stressor list compiled by the RO must be provided to the examiner for review prior to examination. The examiner should note in the examination report that the claims folder and this remand were reviewed. In regard to whether the veteran has service-related PTSD, the examiner must be instructed that only the verified events listed by the RO may be considered as stressors for the purpose of determining whether the any stressors in service have resulted in PTSD or any other psychiatric disorder, and whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. The psychiatrist should specifically be informed that stressors other than those listed by the RO as verified, are not recognized, and may not be considered/relied upon as stressors in support of a diagnosis of PTSD. The examination should include all appropriate tests and evaluations, including psychological testing with PTSD subscales. The examiner should utilize the DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. If PTSD is diagnosed, the examiner MUST enumerate the requisite diagnostic criteria and explain whether and how, with reference to specific clinical findings and/or history, each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner MUST identify the stressor(s) supporting the diagnosis. In regard to psychiatric disorders other than PTSD, the examiner should report all psychiatric disorders found and state (1) whether the veteran had a psychiatric disorder during service and the diagnosis of any such disorder; (2) whether any currently shown psychosis was manifested during the year after service; (3) whether a chronic psychiatric disorder is unequivocally shown to have existed prior to service, the diagnosis of any such disorder, and whether any preexisting acquired psychiatric disorder underwent a permanent increase during or as a result of service. The examiner also should state whether the veteran currently has any acquired psychiatric disorder that is otherwise related to service. The report of the examination must include a complete rationale for all conclusions reached. 9. The RO should review the record and ensure that all the above actions have been adequately completed. Thereafter, the claims should then be readjudicated with consideration of all pertinent law, regulations, and Court decisions, to include Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); West v. Brown, 7 Vet. App. 70 (1994); and Zarycki v. Brown, 6 Vet. App. 91 (1993); 38 C.F.R. §§ 3.304(b), 3.306; and M21-1, part III, 5.14c. The RO should specifically determine whether a psychiatric disorder pre-existed service and, if so, whether it was aggravated therein. If the veteran's claims remain in a denied status, he and his representative should be provided with a supplemental statement of the case, which includes any additional pertinent law and regulations and a full discussion of action taken on the veteran's claim, consistent with the Court's instructions in Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The applicable response time should be allowed. This case should then be returned to the Board, if in order, after compliance with the 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. JANE E. SHARP 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).