Citation Nr: 9829935	
Decision Date: 10/07/98    Archive Date: 10/13/98

DOCKET NO.  97-25 800	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Entitlement to service connection for an acquired psychiatric 
disorder, to include post-traumatic stress disorder. 


REPRESENTATION

Appellant represented by:	Elizabeth G. Marlowe, Attorney 
at Law


ATTORNEY FOR THE BOARD

W. Yates, Associate Counsel



INTRODUCTION

The appellant served on active duty from February 1965 to 
February 1968, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an April 1995 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Atlanta, Georgia.  That rating decision, in pertinent part, 
denied the appellant’s claim for service connection for post-
traumatic stress disorder (PTSD).


REMAND

The appellant contends, in essence, that he is entitled to 
service connection for PTSD.  Specifically, he claims that a 
number of stressful incidents he experienced while stationed 
in Vietnam during the Vietnam War resulted in PTSD.  His 
alleged stressors include: (1) having been ambushed while on 
patrol near Cam Ranh Bay in July or August 1966; and (2) 
witnessing the burning of a Buddhist.

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991).

Service connection for PTSD requires: (1) medical evidence 
establishing a clear diagnosis of the condition; (2) credible 
supporting evidence that the claimed inservice stressor 
actually occurred; and (3) a link, established by medical 
evidence, between current symptomatology and the claimed 
inservice stressor.  38 C.F.R. § 3.304(f) (1996); see also VA 
ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL M21-1), Part VI, 
11.38 (Aug. 26, 1996) (reiterating the three PTSD service-
connection requirements set forth in regulation § 3.304(f) 
and specifically requiring “credible supporting evidence 
that the claimed inservice stressor actually occurred”).  
The MANUAL M21-1 provisions in paragraph 11.38 are 
substantive rules which are “the equivalent of [VA] 
[r]egulations”.  See Hayes v. Brown, 5 Vet. App. 60, 67 
(1993) (citing Karnas v. Derwinski, 1 Vet. App. 308, 313 
(1991)).  With regard to the second criterion, the evidence 
necessary to establish that the claimed stressor actually 
occurred varies depending on whether it can be determined 
that the veteran “engaged in combat with the enemy.”  38 
U.S.C.A. § 1154(b) (West 1991); see also Gregory v. Brown, 8 
Vet. App. 563 (1996); Collette v. Brown, 82 F.3d 389 
(Fed.Cir. 1996).

The United States Court of Veterans Appeals (the Court) has 
held that “[w]here it is determined, through recognized 
military citations or other supportive evidence, that the 
veteran was engaged in combat with the enemy and the claimed 
stressors are related to such combat, the veteran’s lay 
testimony regarding claimed stressors must be accepted as 
conclusive as to their actual occurrence and no further 
development for 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 [combat] 
service.’”  Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  
However, where VA determines from the evidence that the 
veteran did not engage in combat with the enemy or where the 
veteran, even if he did engage in combat, is claiming 
stressors not related to combat, his lay testimony alone is 
not enough to establish that the stressors actually occurred.  
West (Carleton) v. Brown, 7 Vet. App. 70, 76 (1994); see 
also, Zarycki, 6 Vet. App. at 98.

The MANUAL M21-1 provides that the required “credible 
supporting evidence” of a combat stressor “may be obtained 
from” service records or “other sources.”  See Moreau v. 
Brown, 9 Vet. App. 389 (1996); see also Doran v. Brown, 6 
Vet. App. 283 (1994).  However, although corroborating 
evidence of a stressor is not restricted to service records, 
if the claimed stressor is related to combat, and in the 
absence of information to the contrary, receipt of any of the 
following individual decorations will be considered evidence 
of participation in a stressful episode:

Air Force Cross 
Air Medal with “V” Device
Army Commendation Medal with “V” Device
Bronze Star Medal with “V” Device
Combat Action Ribbon
Combat Infantryman Badge
Combat Medical Badge
Distinguished Flying Cross
Distinguished Service Cross
Joint Service Commendation Medal with “V” Device
Medal of Honor
Navy Commendation Medal with “V” Device
Navy Cross
Purple Heart
Silver Star

See MANUAL M21-1, paragraph 11.38(c) (1).

The regulations governing service connection for PTSD differ 
from those governing service connection for other conditions 
because they require evidence of an inservice stressor rather 
than evidence of “incurrence or aggravation” of a disease 
or injury in service or within a post-service presumptive 
period.  The Court’s caselaw allows a physician’s opinion of 
causal nexus, in certain circumstances, to establish 
inservice or presumptive-period incurrence or aggravation 
even when the examination on which the opinion was based was 
made many years after service.  See e.g., ZN v. Brown, 6 Vet. 
App. 183 (1994).  However, since the requirements in 
§ 3.304(f), including a “link, established by medical 
evidence, between current symptomatology and the claimed 
inservice stressor” and “credible supporting evidence that 
the claimed inservice stressor actually occurred,” indicate 
that something more than medical nexus is required, the Court 
held in Moreau, supra, that “credible supporting evidence of 
the actual occurrence of an inservice stressor cannot consist 
solely of after-the-fact medical nexus evidence.”

After a thorough review of the veteran’s claims file, the 
Board concludes that additional development is necessary to 
make an informed determination in this matter.  There is no 
indication in the veteran’s claims file that the RO has 
attempted to retrieve the veteran’s service medical records 
from the National Personnel Records Center (NPRC) in St. 
Louis, Missouri.  In a statement from the veteran, dated May 
1996, he indicated that he was treated for shock following an 
ambush while on patrol in Cam Ranh Bay around July or August 
1966.  Accordingly, the RO should attempt to obtain a copy of 
the veteran’s service medical records.  The RO should also 
contact the NPRC to attempt to obtain copies of the veteran’s 
official military personnel file and the morning reports from 
the 82nd Transportation Company, for the time period covering 
January 1966 to July 1966, and the U.S. Army Marine 
Maintenance Activity, Vietnam for the time period covering 
July 1966 to January 1967.

The United States Court of Veterans Appeals (Court) has also 
held that, when the medical evidence is inadequate, VA must 
supplement the record by seeking an advisory opinion or 
ordering another medical examination. Derwinski, 3 Vet. App. 
213 (1992) and Halstead v. Colvin v. Derwinski, 1 Vet. App. 
171 (1991).   

After reviewing the veteran’s claims file, the Board 
concludes that an additional medical examination of the 
veteran may be necessary to make an informed determination in 
this matter.  Although the medical evidence of record 
revealed PTSD diagnoses, all of these reports fail to comment 
on whether there was a causal nexus between the veteran’s 
alleged stressors and his diagnosis of PTSD.  The Board also 
notes that the medical evidence of record does not provide 
sufficient details regarding the veteran’s alleged stressors 
from which to make this determination.  For example, a 
hospitalization report, dated March 1997, stated simply that 
“he had to do guard duty and participate in battles and 
fights.” 

Accordingly, if after the development indicated herein, the 
RO concludes that 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: 
(1) the sufficiency of the stressor; (2) whether the 
remaining elements required to support the diagnosis of PTSD 
have been met; and (3) whether there is a link between a 
currently diagnosed PTSD and a recognized stressor or 
stressors in service.  38 C.F.R. § 3.304(f) (1996).

In light of the foregoing, and recognizing the VA's duty to 
assist the appellant in the development of facts pertinent to 
his claim under the provisions of 38 U.S.C.A. § 5107(a) (West 
1991) and 38 C.F.R. § 3.103(a) (1996), the case should be 
remanded to the RO for the following actions:

1.  The RO should request from the 
veteran a statement containing as much 
detail as possible regarding the 
stressors to which he was exposed during 
service.  The veteran should be asked to 
provide specific details of the claimed 
stressful events during service, such as 
dates, places, detailed descriptions of 
the events, his service units in Vietnam, 
duty assignments and the names and other 
identifying information concerning any 
individuals involved in the events.  The 
veteran should be told that the 
information is necessary to obtain 
supportive evidence of the stressful 
events and that failure to respond may 
result in adverse action.

2.  The RO should attempt to secure any 
additional service medical records and 
the official service personnel file that 
may exist pertaining to this veteran from 
the service department or the appropriate 
depository of records. 

3.  The RO should request from the 
National Personnel Records Center, in St. 
Louis, Missouri, the morning reports from 
the 82nd Transportation Company (AGS), 
for the time period covering January 1966 
to July 1966, and the U.S. Army Marine 
Maintenance Activity (GS), Vietnam for 
the time period covering July 1966 to 
January 1967.

4.  Following the above, the RO must 
again make a specific determination, 
based upon the complete record, with 
respect to whether the appellant was 
exposed to a stressor or stressors in 
service, and, if so, the nature of the 
specific stressor or stressors.  The RO 
must specifically render a finding as to 
whether the appellant ". . . engaged in 
combat with the enemy."  If the RO 
determines that the record establishes 
the existence of a stressor or stressors, 
the RO must specify what stressor or 
stressors in service it has determined 
are 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 a stressor or stressors, then the RO 
should arrange for the veteran to be 
examined by a Board of two psychiatrists 
who, if possible, have not previously 
examined or treated him to determine the 
nature and severity of his psychiatric 
disorder.  The RO must specify, for the 
examiners, the stressor or stressors that 
the RO has determined are established by 
the record.  The examiners 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.  Each psychiatrist 
should conduct a separate examination 
with consideration of the criteria for 
PTSD.  The examiners should review the 
medical reports of record, including 
those showing diagnoses of PTSD.  If the 
examiners determine that the appellant 
has any psychiatric disorder in addition 
to PTSD, they should determine the 
relationship of any such disorders 
(including etiological origin and 
secondary causation) and specify which 
symptoms are associated with each 
disorder.  If certain symptomatology 
cannot be disassociated from one disorder 
or the other, it should be so specified.

If a diagnosis of PTSD is appropriate, 
the examiners should specify whether each 
alleged stressor found to be established 
for the record by the RO was sufficient 
to produce PTSD; whether the remaining 
diagnostic criteria to support the 
diagnosis of PTSD have been satisfied; 
and, whether there is a link between the 
current symptomatology and one or more of 
the inservice stressors found to be 
established for the record by the RO and 
found to be sufficient to produce PTSD by 
the examiners.

The report of the examination should 
include a complete rationale for all 
opinions expressed.  All necessary 
studies or tests, including psychological 
testing and evaluation, such as the 
Minnesota Multiphasic Personality 
Inventory; the PTSD Rating Scale, the 
Mississippi Scale for Combat-Related PTSD 
are to be accomplished.  The diagnosis 
should be in accordance with the fourth 
edition of American Psychiatric 
Association:  Diagnostic and Statistical 
Manual for Mental Disorders (DSM-IV).  
The entire claims folder and a copy of 
this Remand must be made available to and 
reviewed by the examiners prior to the 
examination.

6.  Following completion of the above 
actions, the RO must review the claims 
folder and ensure that all of the 
foregoing development has been conducted 
and completed in full.  If any 
development is incomplete, appropriate 
corrective action is to be implemented.  
Specific attention is directed to the 
supplemental examination report.  If the 
examination report does not include fully 
detailed descriptions of pathology and 
all test reports, special studies or 
adequate responses to the specific 
opinions requested, the report must be 
returned for corrective action.  38 
C.F.R. § 4.2 (1996) ("if the 
[examination] report does not contain 
sufficient detail, it is incumbent upon 
the rating board to return the report as 
inadequate for evaluation purposes."). 
Ardison v. Brown, 6 Vet. App. 405, 407 
(1994); Abernathy v. Principi, 3 Vet. 
App. 461, 464 (1992); and Green v. 
Derwinski, 1 Vet. App. 121, 124 (1991).

7.  Subsequently, the RO should 
readjudicate the issue on appeal.

Following completion of these actions and, if the decision 
remains unfavorable, the veteran and his representative 
should be provided with a supplemental statement of the case 
and afforded a reasonable period of time in which to respond.  
Thereafter, in accordance with the current appellate 
procedures, the case should be returned to the Board for 
completion of appellate review.

The purpose of this REMAND is to obtain addition medical 
evidence and to ensure that the appellant is afforded due 
process of law.  No opinion, either legal or factual, is 
intimated as to the merits of the appellant's claim by this 
REMAND.  The veteran is not required to undertake any 
additional action until he receives further notification from 
VA.

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 



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remanded by the Board and the Court.  See M21-1, Part IV, 
paras. 8.44-8.45 and 38.02-38.03.



		
	BETTINA S. CALLAWAY
	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).



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