Citation Nr: 9826288 Decision Date: 08/31/98 Archive Date: 07/27/01 DOCKET NO. 93-08 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran served on active duty from May 1966 to April 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was originally before the Board in February 1995. At that time, the Board determined that the veteran had submitted new and material evidence to reopen his claim of entitlement to service connection for PTSD. The Board remanded the issue in order to verify the veteran's claimed in-service stressors as well as to afford the veteran a VA examination. REMAND 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 United States Court of Veterans Appeals (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. The veteran has claimed entitlement to service connection for PTSD. Review of the claims file evidences the fact that the veteran served in Vietnam from April 1967 to April 1968 with the 725th Maintenance Battalion. His military occupational specialty was supply man. The veteran did not receive any awards or decorations denoting participation in combat. 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. 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 also VA ADJUDICATION PROCEDURE MANUAL, M21-1 (MANUAL M21-1), Part VI, 11.38. 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 & 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, at 152-54 (Nebeker, Chief Judge, concurring by way of synopsis). The Court also noted that where "there has been an 'unequivocal' diagnosis of PTSD by mental heath 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 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. It appears to the Board that the regulatory amendments to 38 C.F.R. §§ 4.125 & 4.126, and the incorporation of DSM-IV, will have a potentially liberalizing effect in adjudicating claims for service connection for PTSD, particularly when an individual is not combat veteran as in the present case or who is not shown to have "engaged in combat with the enemy." Where the law or regulations change while a case is pending, the version more favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). As such, the Board believes that further development in this case is necessary. A new mental examination is required which conforms to the criteria promulgated by DSM-IV. Pursuant to the Board's 1995 remand, the veteran was afforded a VA PTSD examination. It does not appear that the examiners had access to the veteran's claims file for consultation in conjunction with the examinations. The Court has held that examinations for compensation and pension purposes conducted without contemporaneous review of the veteran's claims file are deficient for rating purposes. Procelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board notes that the veteran has reported several stressors he experienced while serving in Vietnam. He stated that he had observed a dead soldier who was missing half his head. He also reported being on duty numerous times at an ammunition dump when the enemy fired mortars and rockets at his location. He also indicated that he was subjected to rocket and mortar fire at other times. He reported that he fired on enemy soldiers attacking his perimeter during the Tet offensive. In September 1997, the RO relayed to the United States Armed Services Center for Research of Unit Records (USASCRUR) the veteran's descriptions of his in-service stressors in an attempt to verify their occurrence. USASCRUR responded to the RO's inquiries via a letter dated in April 1998. It was reported that Army records evidenced the fact that the army base at Cu Chi (which was the base area of the 725th Maintenance Battalion) was attacked in February 1968. The records further indicate that the unit the veteran served with while in Vietnam was subjected to "combat activities, to include mortar, rocket and ground attacks." There was no evidence that an ammunition dump located in Cu Chi was hit with rockets in February 1968. The Board finds that the USASCRUR report dated in April 1998 verifies the fact that the veteran was subject to rocket, mortar and ground attacks while serving with his unit in Vietnam. An opinion by a medical professional must be obtained in order to determine if the stressors verified by the USASCRUR were sufficient to cause PTSD under the criteria promulgated by DSM-IV. 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) (West 1991); 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 request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to his claim of entitlement to service connection for PTSD. After obtaining any necessary authorization, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the response from the veteran, the RO should obtain any current, outstanding VA treatment records. 2. The RO should arrange for the veteran to be afforded a VA psychiatric examination by a board of two qualified psychiatrists who, if possible, have not previously examined the veteran, to determine the diagnoses of all psychiatric disorders that are present. The RO must specify for the examiners that it has been verified that the veteran was exposed to rocket, mortar and ground attacks while serving in Vietnam and the examiner must be instructed that only those events may be considered for the purpose of determining whether the appellant was exposed to a stressor in service. If a diagnosis of PTSD is made, the examiners should specify (1) whether each stressor found to be established by the record 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 found to be established by the record and found to be sufficient to produce PTSD by the examiners. The examination reports should include the complete rationale for all opinions expressed. Any necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The entire claims folder and a separate copies of this REMAND must be made available to and reviewed by the examiners prior to conduction and completion of the examination. A notation to the effect that the claims file was reviewed for the examinations must be included. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been accomplished. 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. 4. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for PTSD. 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 veteran until he is notified by the RO. RONALD R. BOSCH 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).