Citation Nr: 9834419 Decision Date: 11/20/98 Archive Date: 11/24/98 DOCKET NO. 94-29 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from March 1969 to December 1971. He had service in the Republic of Vietnam from November 1969 to November 1970. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. That rating decision denied service connection for post-traumatic stress disorder (PTSD). This case was previously remanded in June 1996 for additional development of the veteran's claimed stressor, and additional medical records. Unfortunately, the requested development was not completed and this case is again remanded to the RO. REMAND Establishing service connection for PTSD requires (1) a current clear medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 138(1997); Moreau v. Brown, 9 Vet. App. 389, 394-95 (1997); 38 C.F.R. § 3.304(f) (1998); 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 MANUAL M21-1, as recently revised, 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 United States Court of Veterans Appeals (Court) has held that a physician’s opinion of causal nexus, in certain circumstances, may serve 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) for a “link, established by medical evidence, between current symptomatology and the claimed inservice stressor” and for “credible supporting evidence that the claimed inservice stressor actually occurred,” indicate that something more than medical nexus is required, the Court recently 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.” In this case, the veteran contends that he suffers from PTSD a result of his exposure to traumatic and stressful events during his military service in Vietnam. Specifically, he alleges that he witnessed numerous rocket attacks on the petroleum yard where he worked, witnessed many of his friends’ deaths, including watching a rocket hit one of his close friends, causing his intestines to spill out of his body, and seeing a co-worker blow up while cutting a 55 gallon drum with a blow torch. He avers that he now suffers from extreme anxiety, severe nightmares, severe flashbacks, depression, and insomnia. He alleges that he has been hospitalized in VA medical centers at least ten times with PTSD. He claims that he has suffered from these problems ever since he was discharged from service. The veteran's discharge papers show that the veteran served in the Republic of Vietnam from November 1969 to November 1970. His occupational specialty was petroleum storage specialist. In October 1991, the veteran filed an informal claim for service connection for post-traumatic stress disorder. In February 1992, he submitted a statement describing his experience in Vietnam. My duty was to run and operate a pump station. . . . In many cases we were under enemy [attack]. . . . My worst experience was to see one of my buddies killed during an attack on the [pump station]. As a result of my tour in Vietnam, [I] now have flashbacks of different events that happened. Some appearing in dreams and nightmares. The veteran's personnel records were obtained and associated with the claims file. These verify his occupational specialty in petroleum storage but do not show any combat experience or exposure. In April 1992, the veteran was afforded a VA PTSD examination. He related his experiences in Vietnam. The examiner wrote, “[h]e was not actually in combat but the petroleum yard received frequent rocket attacks.” He described losing friends during rocket attacks, seeing one of his friends blown up by a rocket, and witnessing another friend who “had all of his intestines blown out and was killed.” The diagnoses were PTSD and chronic paranoid schizophrenia. The examiner noted that the veteran had “fairly constant hallucinations of voices, usually those of combat situations.” The veteran's claim for service connection for PTSD was denied by the RO in May 1992 because he had not provided the RO with detailed information to confirm the occurrence of his claimed stressors, including information concerning the personnel involved and especially the buddy he witnessed getting killed. In June 1992, the RO received a response from the veteran describing in more detail the persons he saw killed or wounded in Vietnam. He also submitted a copy of a report of his VA hospitalization from April 1992 to May 1992 showing a diagnosis of PTSD, “delayed type with affective features.” He was hospitalized again from June to July 1992 for multiple medical disorders, as well as complaints that he was experiencing auditory and visual hallucinations. In December 1992, the RO again denied the veteran's claim for service connection for PTSD. In January 1993, the veteran was readmitted to the VA hospital. The report noted that the veteran had “profound nightmares of the Vietnam War, relives [the] Vietnam War, lost close friends in [the] Vietnam War, and gets depressed. He has auditory hallucinations, visual hallucinations, depressed mood, delusions of persecution, paranoid ideation and ideas of reference.” The assessment was PTSD, delayed type with schizo-affective and paranoid features. In June 1996, the veteran's claim was reviewed by the Board and remanded for additional development of the veteran's claimed stressors and medical evidence of his claimed 10 hospitalizations for PTSD. Records of his hospitalization at the VAMC in Tuskegee were received showing several periods of hospitalization dating from October 1991 to June 1994, all showing diagnoses of PTSD as well as numerous other disorders. Another statement was received by the veteran in September 1996 describing his claimed stressors and listing three names of persons he knew who were killed in action in Vietnam. He could not remember the name of the person killed while cutting a 55 gallon drum with a torch. He repeated his description in somewhat greater detail in another January 1997 statement. In May 1997 and July 1997, records of his treatment at the VAMC in Birmingham were received showing his treatment primarily for vision problems, vascular problems and complications of diabetes. In October and December 1996, and again in April 1997, the National Personnel Records Center (NPRC) in St. Louis was contacted and asked for copies of the veteran's service personnel and unit records. NPRC replied that although it had conducted extensive searches for the veteran's records, the record had been charged out of file and could not be located. The U.S. Army & Joint Services Environmental Support Group (ESG) was also contacted and asked to provide any information to show whether the veteran was engaged in combat. In an August 1996 response, ESG wrote: After reviewing your recent correspondence to us we have determined that the information received is insufficient for the purpose of conducting meaningful research on behalf of [the veteran], at this time. Your correspondence did not provide us with [the veteran's] stressor information. Nevertheless, ESG was able to prove a unit history for one of the units in which the veteran served. ESG added that future requests should include a copy of the veteran's DA Form 20. In October 1997, the RO readjudicated the veteran's claim again denying service connection for PTSD because “the evidence available for review does not establish that a stressful experience occurred.” Although ESG noted that it had not been supplied with a list of the veteran's claimed stressors, or a copy of his personnel records to include his DA Form 20, the RO never resubmitted a request containing this information. The Board specifically indicated in the June 1996 remand that the RO should prepare a summary of the veteran's claimed stressors and forward this information to ESG; however, this clearly was not done. The United States Court of Veterans Appeals (Court) has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO should prepare a list of the veteran's alleged stressors, and forward this along with a copy of the veteran's service personnel records to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), formerly the “United States Army and Joint Services Environmental Support Group” (ESG), in an attempt to verify the claimed stressors. In this respect, the Board acknowledges that the information provided by the veteran may not be as complete as the USASCRUR will need to verify the existence of the appellant’s claimed stressor. Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of PTSD provide that, “where records available to the rating board do not provide objective or supportive evidence of the alleged in service traumatic stressors, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2). Accordingly, as the development outlined in Manual M21-1, includes providing the information submitted by the veteran to the USASCRUR, such development is mandatory. For the reasons noted above and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should again review the file and prepare a summary of all the claimed stressors. The RO is specifically directed to the January 1997 letter from the veteran which appears to be the most complete description of the claimed stressors. This letter refers to the following four events: a. While with the 525 QM POL Yard at Nha Trang, in July 1970, a Sgt. Khan was killed by a mortar attack. b. While with the 525 QM POL Yard at Nha Trang, in July 1970, a Sgt. Jackson of the supply squadron at Nha Trang was killed by a machete blow in downtown Nha Trang. c. While with the 525 QM POL Yard at Nha Trang, in August 1970, a Sgt. Collet was killed by a mortar attack. d. While with the 524 QM POL Yard at Cam Ran Bay, (no date or name), a Sgt. was killed while cutting in half a 55 gallon drum with a blowtorch. A summary of the veteran's claimed stressors and all associated documents showing the units to which the veteran was assigned while in Vietnam should be sent to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), formerly the “United States Army and Joint Services Environmental Support Group (ESG)”, 7798 Cissna Road, Springfield, VA 22150. See VA MANUAL M21- 1, Part VI, Paragraph 7.46 (1992). They should be requested to provide any information to show whether the veteran was engaged in combat with the enemy and to corroborate the veteran’s alleged stressors. A copy of the veteran’s DD 214 and his 201 file, if available, should also be forwarded to the USASCRUR with the request. The RO is reminded that a copy of the veteran's DA Form 20 is already located in the claims file. 2. Following the above, the RO must 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. 3. If and only if the RO determines that the veteran was exposed to a stressor or stressors in service, the veteran should be scheduled for another VA psychiatric examination. The examination should be conducted with consideration of the criteria for post-traumatic stress disorder and other psychiatric disorders. The RO must specify, for the examiner, the stressor or stressors that the RO has determined are established by the record. 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. The examination report should include a detailed account of all pathology found to be present. If there are different psychiatric disorders than post-traumatic stress disorder, the psychiatrist 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 specified. If a diagnosis of post-traumatic stress disorder is appropriate, the examiner should specify the credible “stressors” that caused the disorder and the evidence upon which they relied to establish the existence of the stressor(s). The examiner should also describe which stressor(s) the veteran reexperiences and how he reexperiences them. The psychiatrist should describe how the symptoms of post-traumatic stress disorder affect his social and industrial capacity. The report of examination should include a complete rationale for all opinions expressed. All necessary special studies or tests including psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory (MMPI) and the Mississippi Scale for Combat- Related Post-Traumatic Stress Disorder are to be accomplished. Copies of the test results should be included with the examination report. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the physician include a definition of the numerical code assigned. Thurber v. Brown, 5 Vet. App. 119 (1993). The diagnosis should be in accordance with the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4TH ed., 1994). The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. 4. 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 examination reports. If the examination reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, they must be returned for corrective action. 38 C.F.R. § 4.2 (1998) (“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.”). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 5. Subsequently, the RO should consider the issue on appeal. In this regard, the RO should give full consideration to whether the issue is well grounded. Once the foregoing has been accomplished and, if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. The Board intimates no opinion as to the ultimate outcome of this case. 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. 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) (1998). - 2 -