Citation Nr: 9835641 Decision Date: 12/03/98 Archive Date: 12/15/98 DOCKET NO. 93-16 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from July 1967 to June 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 Roanoke, Virginia, which found that the veteran had not submitted new and material evidence to reopen his claim for service connection for post-traumatic stress disorder. Also on appeal was a June 1997 decision which found that the veteran had not submitted new and material evidence to reopen his claim for neurological defects due to Agent Orange exposure in service. However, in a March 1998 letter, the veteran withdrew his claim to service connection for neuropathy. See Hamilton v. Brown, 4 Vet.App. 528 (1993)(en banc), aff’d, 39 F.3d 1574 (Fed. Cir. 1994) (the Board has no authority to proceed on an issue that has been withdrawn). This case was previously before the Board in August 1995 when it was remanded to the RO for, in part, additional development of the veteran's claimed stressors. Unfortunately, the requested development has not been completed and this case must again be 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 (1) that he was ordered to keep watch all night over two dead Vietcong sappers, (2) that he was almost shot in the head by a fellow soldier while on guard duty, and (3) that he was nearly shot by an enemy sniper while repairing a vehicle. He avers that, subsequent to service, he has experienced symptoms of PTSD such as nightmares and flashbacks about his wartime experiences, a very short temper, impaired concentration, and panic attacks. The veteran had service in the Republic of Vietnam from February 1968 to February 1969 and from September 1969 to June 1970. His military occupation specialty was engine and power train repairman. He was awarded the Vietnam Service Medal, the Vietnam Campaign Medal, and the Army Commendation Medal. Despite numerous attempts to obtain the veteran's service medical records, these have not been associated with the claim file. The veteran's claim for PTSD was originally denied in a December 1989 Board decision, in part, because his claimed stressors were unverified. The veteran filed a request to reopen his claim in a December 1992 letter to the RO. He included a lay statement from a buddy, who wrote that he served with the veteran and that the veteran was told to guard some dead sappers all night who had been killed trying to come into the compound. Also submitted were photographs, from negatives recently discovered by the veteran's mother, showing two bodies which the veteran identified as the sappers. In its initial review of this appeal, the Board in August 1995 determined that the buddy lay statement and the pictures of the dead bodies constituted some corroboration of one of the stressors, and as such was new and material to reopen the claim. The Board then remanded the claim for additional development to include (1) another search for the veteran's service medical records, (2) records of any current medical treatment, (3) a finding by the RO whether the veteran “engaged in combat with the enemy,” and if not (4) a finding by the RO with respect to whether the veteran was exposed to a stressor or stressors in service, (5) corroboration of the claimed stressors by contacting the director of the National Archives and Records Administration (NARA) and the United States Army and Joint Services Environmental Support Group (ESG), and finally (6) a VA psychiatric examination if the RO determined that stressors were established by the record. Although the RO complied with the first four instructions identified above, making a determination in July 1996 that the veteran had not been in combat, the RO failed to pursue corroboration of the veteran's noncombat stressors claiming that the veteran’s claimed stressors were such “that they cannot be verified by the usual sources.” The 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). 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 stressors. 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. The RO should therefore prepare a list of the veteran's alleged stressors, and forward this along with a copy of the veteran's service personnel records if available 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. The Board also notes that the RO was instructed to contact the National Archives and Records Administration (NARA) for historical records which might verify the events identified by the veteran. Letters in the claims file show that the veteran originally contacted NARA in July and October 1992 seeking information. NARA responded in August 1992 that it had approximately 2,000 pages of records pertaining to the 86th Maintenance Battalion during 1968 which consisted of S-1 HQ daily journals. NARA also located 800 pages of HW daily journals, dated 1967, for the 62nd Maintenance Battalion, and an organizational history, 1966-67, for the 149th Maintenance Company. In October 1992, NARA added that it had located approximately 600 pages of daily journals for the 62nd Maintenance Battalion for January to December 1967. Both letters indicated that copies would be provided at a cost of 25 cents a page. In January 1993, the veteran wrote the RO indicating that the information he received from NARA was for the wrong outfits and the wrong years. Records in the claims file show that the veteran was promoted to private first class in March 1968 at which time he was serving with the 618th Heavy Equipment Maintenance Company. In a July 1996 letter, the veteran stated that he served from February 1968 to November 1968 with the 86th Maintenance Battalion, 618th Direct Support Company, where two of his three claimed stressors occurred. Then he wrote that he was sent to the 62nd Maintenance Battalion, 149th Maintenance Company. This, he stated, was where his third stressor involving the two dead sappers occurred. In an October 1996 letter to the veteran's United States Senator, the RO wrote that it could not request records from NARA because VA was not authorized to pay the fees NARA was required by law to charge for such copies. Because the RO never directly contacted NARA, and the earlier responses to the veteran's requests for information were in error according to the veteran, another attempt should be made to locate any unit records in NARA’s possession which might verify the claimed stressors. Because morning reports are also maintained by the National Personnel Records Center (NPRC), it should also be contacted for any information. Any response should be forwarded to the veteran. Additionally, the Board notes that the veteran's medical history contains several diagnoses of PTSD, as well as a history of being hospitalized in May 1973 after he was involved in an automobile accident. His diagnosis following the accident was right parietal skull fracture; cerebral concussion; and organic brain syndrome, post-traumatic. The veteran was provided a VA neurologic evaluation in March 1985. The veteran's wife reported that his personality stared to change in 1978 and had become unbearable during the two previous years due to his extreme anger. The examiner concluded that the mental status examination appeared to be consistent with neurophychologic testing in that it suggested a moderate organic mental syndrome. CT scans were reviewed and it was noted that there was considerable left frontotemporal damage and right parietal damage. These were considered to be post-traumatic encephalopathy changes. The final diagnosis was post-traumatic personality disturbance. In an April 1985 report, a VA psychologist stated that he had reviewed the results of a psychological evaluation performed in December 1984 and the results of the March 1985 examination. He stated that the test data were quite consistent with the history of head trauma and, overall, was clearly an “organic” pattern. In a January 1987 report, a VA psychologist reported that the veteran had been given psychological testing and an interview. He concluded that the veteran appeared to have suffered cerebral impairment. The veteran submitted the first page of a psychiatric evaluation performed at a private clinic in June 1987. It was reported that most of the veteran's complaints dated from his automobile accident, although there was some evidence that he had generalized anxiety prior to that time. VA outpatient treatment reports show that anxiety attacks were diagnosed in July 1988. The following month the veteran continued to be focused on compensation and the reports note that it was all he could talk about. On psychological evaluation in August 1988, he reported his dreams of what had happened to him in Vietnam. The diagnostic impressions were panic disorder; generalized anxiety; rule out post-traumatic stress disorder; and chronic brain disorder secondary to trauma. In an August 1988 letter, a VA social worker stated that he had met the veteran on two occasions and that he believed that the veteran had post-traumatic stress disorder, panic attacks, and generalized anxiety disorder as a result of his two tours of duty in Vietnam. It was his opinion that the veteran's 1973 injuries could not have caused the veteran's psychological problems. In September 1988, the veteran was also evaluated by a VA psychiatric clinical nurse specialist. In relevant part, the veteran complained that he was frequently awakened by nightmares of what he went through in Vietnam, and that he had chronic anxiety and poor concentration. He stated that he was irritable, could not tolerate crowds, and was hypervigilant. He also reported that he was often bothered by intrusive thoughts regarding his Vietnam experiences. With respect to Vietnam, he reported that he was not in direct combat there, but worked as a mechanic and on an engineering team. His outfit was subject to sniper attack at times. The examiner remarked that, while the veteran seemed to have some difficulty in coping with what he went through in Vietnam, he did not demonstrate a clear clinical picture of post-traumatic stress disorder. The Axis I diagnosis was generalized anxiety disorder, the Axis II diagnosis was deferred, and the relevant Axis III diagnosis was post- traumatic encephalopathy with dementia. Other VA records show that veteran was hospitalized in November and December 1988. It was reported that he maintained that he had post-traumatic stress disorder, but that post-traumatic stress disorder symptoms were not supported in the records although he did describe some during hospitalization. During the course of hospitalization, episodes of attention, pressure, and reflection on Vietnam stopped, and the veteran's irritability improved. It was noted that he had a prolonged episode that could only be diagnosed as a flashback to Vietnam, but the physician opined that the evidence was inconclusive as far as post-traumatic stress disorder. The veteran stated that memories of Vietnam occurred during episodes of feeling “freezing” and that this feeling was very similar to he coldness he felt when he was guarding the bodies of two Vietcong sappers. He reported that every time he looked at a gun he felt that “I’m going on guard duty tonight.” He stated that he did not have combat dreams at the time, but that his wife had awoken him during the first years of their marriage stating that he was talking in his sleep about people “coming in on me.” The Axis I diagnoses on psychiatric examination were generalized anxiety disorder and consider post-traumatic stress disorder. On discharge from the hospital, his diagnosis was organic personality syndrome secondary to old head trauma. The veteran was hospitalized by VA in January and February 1989 with complaints of increased anxiety, a freezing sensation, and sleep difficulties. The final Axis I diagnosis was panic attacks without agoraphobia. The relevant Axis III diagnosis was post-traumatic encephalopathy. In March 1989, the veteran and his wife offered testimony at a hearing before a hearing officer at the RO. In pertinent part, the veteran stated that while in Vietnam he was almost killed when a member of his sentry detail’s gun accidentally discharged and the bullet whizzed by his head; that he was fired on by a sniper when he was working on a truck; and that he had to guard the bodies of two sappers killed trying to get through the wire. He stated that he never had over 3 and one half or 4 hours of sleep a night. He would wake up during the night, sit in the dark, and think about all the things that had happened to him during his life, including what happened in Vietnam. He also reported that a cold feeling came over him when jets flew low or a military helicopter went by. The veteran stated that he was unable to concentrate enough to read and that his temper was explosive. He also stated that he startled easily, but that he did not feel guilty about having survived Vietnam. The veteran's spouse testified that after they were married in 1971, the veteran would drink and talk about killing “gooks”. The veteran was hospitalized in December 1993 with a burn wound. He was referred for a psychiatric examination which noted that during his hospitalization he presented sudden changes from his usual pleasant, easygoing self. He started stating that he felt anxious, had “the chills” and was found to be very emotionally labile, crying copiously and feeling embarrassed of his inability to control himself. During early morning of [December 1993, he] experienced a full flashback where he saw North Vietnamese army soldiers creeping onto his bed. [He] was assessed [the next day] by me, and I found [a] very tearful, anxious [patient] who pleaded for help and expressed shame of ‘carrying on’ as he was. The veteran responded well to medication, feeling a “warm glow” which countered the dysphoric sensation of fright, anxiety, helplessness and depression which he catalogued as a “freezing sensation” that he first felt on the night that he relives in his flashbacks. Following his discharge, his wife phoned and reported that the veteran was experiencing visual and auditory hallucinations and periods of disorientation. His medication was tapered and the flashbacks discontinued. At the time of the examination, the veteran was stable, cooperative, in good spirits and with no abnormality except for sensorium. The Axis I diagnoses were PTSD, delayed onset (1987), generalized anxiety disorder with panic like symptoms including agoraphobia, rule out dysthymia, late onset, and organic mental disorder, not otherwise specified. A letter from a physician at the VA medical center noted that the veteran had been followed at the VA Neurology Clinic since 1985 for multiple problems. He had been evaluated for head injury and skull fracture secondary to a motor vehicle accident in 1973. The letter also notes that the veteran carried a diagnosis of PTSD with severe anxiety as well as depressive symptoms. In April 1994, the veteran was treated at a VA outpatient clinic for his burn scars to the left arm and chest. PTSD was listed as one of his diagnoses. PTSD was again part of the veteran's assessment in an incomplete February 1995 records when he was treated for a sore neck. Two days later he indicated that the was doing “fair,” but could not tolerate crowds. Also, the violence on TV “sets me off.” He liked to get away by himself. He still had a “freezing feeling.” A July 1995 medical certificate shows that he wanted to be seen by a doctor about his medication. He felt he was having a reaction to his medication, complaining of side effects from the medication which were becoming worse. In March 1996, he was treated for numbness and tingling in his hands. His medication for his headaches was changed. In June 1997, the veteran continued to have problems with his medication, noting various side effects listed on drug sheets which were issued by the pharmacy. He was noted to be “totally focused on getting service-connection for PTSD.” A September 1997 records shows treatment for numerous somatic complaints. He had stopped having “freezing spells” with a change in his medication. There was no objective anxiety and his mood was euthymic. Because of the numerous conflicting diagnoses noted above, the Board is unable to determine with any degree of certainty whether the veteran has PTSD. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F. 3d 1328 (1997); see also Caluza v. Brown, 7 Vet.App. 498, 505 (1995); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet.App. 141, 143 (1992). The 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. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App. 213 (1992). Because of the conflicting medical evidence, and the Board’s previous determination that corroborating evidence regarding one of the stressors was sufficient to reopen the claim, the RO should schedule the veteran for a psychiatric examination to determine whether he had PTSD and if so, whether it is related to his active service, or his post service automobile accident. This should be done regardless of the RO’s determination regarding the occurrence of any stressors in service. 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. 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. 2. The RO should contact in writing the National Archives and Records Administration (NARA), at the following address: National Archives and Records Administration (NARA) ATTN: Archives II Textual Reference Branch (NNR2), Room 2600 8601 Adelphi Road College Park, MD 20740-6001 The RO should also contact the National Personnel Records Center (NPRC) for any available Morning Reports. Their address is National Personnel Records Center (NPRC) ATTN: NCPMR-O 9700 Page Avenue St. Louis, MO 63132-5200 Any results of the above searches should be associated with the claims file. The RO is referred to the veteran's January 1993 letter which appears to be the most complete description of his dates of service and unit assignments while in Vietnam. 3. 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 again 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. 4. The veteran should be scheduled for a 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, any 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. 5. 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). 6. Subsequently, the RO should consider the issue of entitlement to service connection for post-traumatic stress disorder. 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. 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. 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). - 2 -