Citation Nr: 9905509 Decision Date: 02/26/99 Archive Date: 03/03/99 DOCKET NO. 97-25 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for a heart disorder, on a direct basis and secondary to post-traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Associate Counsel INTRODUCTION The appellant served on active duty from February 1962 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. That rating decision, in pertinent part: (1) denied the appellant's claim for service connection for post-traumatic stress disorder (PTSD); and (2) denied the appellant's claim for service connection for a heart disorder, on a direct basis and secondary to PTSD. REMAND A. Service Connection for PTSD 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) being subjected to mortar attacks, during which helicopters were destroyed, while stationed at Phu Loi; (2) frequent enemy ambush attacks while traveling in a convoy to Saigon to pick up supplies. In one such incident, the veteran alleges that the driver of the vehicle in which he was a passenger was shot; (3) witnessing civilians being killed while traveling in a helicopter with Major Richard Hughes; and (4) witnessing the brutal killing and torturing of Viet Cong soldiers by South Vietnamese soldiers. 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) (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 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. Specifically, there is no indication in the veteran's claims file that the RO has attempted to retrieve records available from the U.S. Armed Services Center for Research of Unit Records (USASCRUR) (formerly the U.S. Army & Joint Services Environmental Support Group (ESG)) relating to the activities of the units in which the veteran served during his tours of duty in Vietnam. See VA Manual M21-1, Part VI, Paragraph 11.38 (f)(4) ("A denial solely because of an unconfirmed stressor is improper unless it has first been reviewed by the ESG or Marine Corps."). These records may be able to verify whether the veteran's alleged inservice stressors are consistent with activities of his unit. The RO should also contact the National Personnel Records Center to attempt to obtain copies of the morning reports from the following units for the following time frames: the 116th Aviation Company from October 1965 to July 1966; the 147th Aviation Company from July 1966 to May 1967; the HHC, 50 6th Field Depot from November 1967 to February 1968; and the HHC, 53 GS Group from February 1968 to April 1968. Prior to performing this search, the RO should request that the veteran provide further information and detail from which to verify his alleged stressors. Any information in this regard, i.e. names, dates, units, locations, etc., would be extremely helpful in verifying the veteran's claim. See Pollard v. Brown, 6 Vet. App. 11 (1993) (duty to assist not breached by failure of the Secretary to obtain requested records where the appellant failed to identify specifically what "additional medical records" were being sought and why they were relevant; the duty to assist is not a one-way street). 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, the medical evidence of record fails to provide a causal nexus between the veteran's current symptomatology and specific inservice stressors. 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 the currently diagnosed PTSD and a recognized stressor or stressors in service. 38 C.F.R. § 3.304(f) (1998). B. Service Connection for Heart Disorder After a thorough review of the veteran's claims file, the Board finds the issue of entitlement to service connection for a heart disorder, on a direct basis and secondary to PTSD, to be inextricably intertwined with the issue of entitlement to service connection for PTSD. Both of these issues require a factual determination regarding the relationship, if any, between the veteran's PTSD and his active duty service. Therefore, it is incumbent upon the Board to remand this issue to the RO so that it may properly develop the veteran's claim to entitlement to service connection for PTSD, before the Board renders a final adjudication regarding the appellant's claim for service connection for a heart disorder, on a direct basis and secondary to his PTSD. Harris v. Derwinski, 1 Vet. App. 180 (1991). C. Conclusion 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) (1998), 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. Regardless of the veteran's response, the RO should review the file and prepare a summary of all the claimed stressors. This summary 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), 7798 Cissna Road, Suite 101, Springfield, VA 22150-3197. See VA MANUAL M21-1, Part III, Paragraph 5.14. 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. 3. The RO should request from the National Personnel Records Center, in St. Louis, Missouri, the morning reports from the 116th Aviation Company, from October 1965 to July 1966; 147th Aviation Company, from July 1966 to May 1967; HHC, 50 6th Field Depot, from December 1967 to February 1968, and the HHC, 53 GS Gp, from February 1968 to April 1968. 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 (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."). 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. The Board has found that the issue of entitlement to service connection for a heart disorder, on a direct basis and secondary to PTSD, is inextricably intertwined with the issue of entitlement to service connection for PTSD. Accordingly, after completing the above actions, the RO should readjudicate the veteran's claim for service connection for PTSD. Thereafter, the RO should readjudicate the veteran's claim for service connection for a heart disorder, on a direct basis and secondary to PTSD. 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 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). - 11 -