BVA9502243 DOCKET NO. 93-05 362 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for post traumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Thomas C. Taylor, Associate Counsel INTRODUCTION Appellant served on active duty from April 1968 to April 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal of an October 1992 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for post traumatic stress disorder (PTSD). The veteran was notified by the RO in March 1993 that his appeal was being certified to the Board for disposition. By letter in August 1994, James W. Stanley, Jr., requested that he be entered as counsel for the veteran, and he requested that the veteran be scheduled for a hearing before a traveling member of the Board. As this request was untimely (38 C.F.R.§ 20.1304 (1993)), the veteran was notified in December 1994 that he could only accomplish a change of representation and request a personal hearing at this late date by filing with the Board a written motion demonstrating good cause for the delay. In view of the development requested on REMAND below, the foregoing requests need to be resolved at the RO at this time prior to the Board's appellate consideration of the case. REMAND The threshold question in all cases is whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). Boeck v. Brown, 6 Vet.App. 14, 17 (1990). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Foremost, there must be evidence of a current disability. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Furthermore, there must be more than a mere allegation; the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the issue is factual in nature, e.g., whether an incident occurred during service or whether a clinical symptom is present, competent lay testimony may constitute sufficient evidence to establish a well- grounded claim. Cartright v. Derwinski, 2 Vet.App 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). Moreover, such medical evidence must be more than speculative. Tirpak, 2 Vet.App.at 611 (term "may or may not" renders opinion speculative). Any adjudication on the merits of a claim which is not well-grounded would constitute error. Grivois v. Brown, 6 Vet.App. 136 (1994). In this case, the veteran has described wartime events in Vietnam. He also has a diagnosis of PTSD in partial remission. Consequently, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107. See Proscelle v. Derwinski, 2 Vet.App. 629 (1992); See also King v. Brown, 5 Vet.App. 19 (1993). Once a claimant has submitted a well grounded claim, that is a claim which is plausible, either by reason of being meritorious on its own or "capable of substantiation," 38 U.S.C.A. § 5107(a) requires the VA to "assist such a claimant in developing the facts pertinent to the claim." Murphy v. Derwinski, 1 Vet.App. 78, 80 (1990); Sagainza v. Derwinski, 1 Vet.App, 575, 580 (1991). The veteran seeks service connection for PTSD. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). Acting in its duty to assist the veteran in developing his claim, the RO has retrieved historical and operational records from the U.S. Army & Joint Services Support Group. The record also contains statements from the veteran concerning wartime events during his service in Vietnam. A VA Psychiatric Examination Report, dated in March 1992, contains a review of the veteran's current symptoms, without specific attribution to their causes, and concludes with the following. PSYCHIATRIC DIAGNOSIS: 1) Dysthymia, secondary to Parkinson's disease. 2) Posttraumatic stress disorder in partial remission. COMMENT ON THE DIAGNOSIS: This man was in active combat in Vietnam and, while it is difficult to get specific stressors from him, some of the things he does mention would be sufficient stressors. His Parkinson's disease makes it difficult to completely evaluate him but I felt that he had symptomatology of posttraumatic stress disorder in the past, from the history from the wife and from him, with only the residual at this time of having recurrent dreams where he thrashes about and, if the wife doesn't awaken him, he will hit her. This has been going on since he was in Vietnam. He doesn't remember these dreams when he wakes up, however. His main problem at this time is his Parkinson's disease and his dysthymia is secondary to that and his helplessness. The matter of his recognized stressors and his diagnosis of PTSD must be further developed, particularly in light of the cases from the United States Court of Veterans Appeals (Court) discussed below. In Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set forth the framework for establishing the presence of a recognizable stressor, which is an essential prerequisite to support the diagnosis of PTSD. The Court analysis divides into two major components: The first component involves the evidence required to demonstrate the existence of an alleged stressful event; the second involves a determination as to whether the stressful event is of the quality required to support the diagnosis of PTSD. With regard to the first component in the Court analysis, under 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304 (1992), and the applicable VA Manual 21-1 provisions, the evidence necessary to establish the occurrence of the recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet.App. 60 (1993). The Court articulated the two-step process of determining whether a veteran "engaged in combat with the enemy." First, it must be determined through recognized military citations or other supported evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat. If the determination with respect to this type is affirmative, then (and only then) a second step requires that the veteran's lay testimony regarding claimed stressors must be accepted as conclusive after the actual occurrence and no further development or 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 such service." Zarycki, 6 Vet.App. at 98. In other words, the claimant's assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this fact. The record must first contain recognized military citations or other supportive evidence to establish that he "engaged in combat with the enemy." The Board further notes that the Court has indicated that the mere presence in a combat situation is not sufficient to show that an individual was engaged in combat with the enemy. Wood v. Derwinski, 1 Vet.App. 190 (1991) (affirmed on reconsideration, 1 Vet.App. 406 (1991)). In West v. Brown, No. 92-890 (U.S. Vet.App. Aug. 8, 1994) the Court elaborated on the second step of its analysis in Zarycki. In Zarycki, the Court held that in addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event was sufficient to give rise to PTSD. Id. at 98-99. In West, the Court held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. The Court also held in West that a psychiatric examination for the purpose of establishing the existence of PTSD was inadequate for rating purposes because the examiners relied, in part, on events whose existence the Board had rejected. Upon reviewing Zarycki and West, it appears that in approaching a claim for service connection for PTSD, the question of the existence of an event claimed as a recognizable stressor must be resolved by adjudicatory personnel. If the adjudicators conclude 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) (1993) In such a referral, the adjudicators should specify to the examiner(s) precisely what stressor or stressors have been accepted as established by the record, and the medical examiners must be instructed that only those events may be considered in determining whether the appellant was exposed to a stressor and what the nature of the stressor or stressors was to which the appellant was exposed. In other words, if the adjudicators determine that the existence of an alleged stressor or stressors in service is not established by the record, a medical examination to determine whether PTSD due to service is present would be pointless. Likewise, if the examiners render a diagnosis of PTSD that is not clearly based upon stressors in service whose existence the adjudicators have accepted, the examination would be inadequate for rating purposes. Also, examiners should attempt to identify the most likely etiology of the veteran's psychological symptoms. If it is impossible distinguish the causes of psychological symptoms, he or she should so opine. When, during the course of review the board determines that further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the Board shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 19.9 (1993). In order to fulfill its statutory duty to assist the veteran and adequately develop his claim, the case is REMANDED to the RO for the following actions: 1 The veteran should be asked to clarify his preference concerning the matter of his representation in connection with his appeal to the Board in this case. He should also be asked whether or not he desires a hearing on appeal. 2. The RO should also request that the veteran provide the names and addresses of all health care providers who have treated him for PTSD, as well as the approximate dates of such treatment. Then, after obtaining any necessary authorization from the veteran, the RO should request copies of any pertinent private and VA treatment records not already of record. 3. The RO should request from the veteran a comprehensive statement containing as much detail as possible regarding the stressor(s) to which he alleges he was exposed in service. The veteran should be asked to provide specific details of the claimed stressful elements during service, such as dates, places, detailed descriptions of events, and any other identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment, or any other identifying detail. The veteran is advised that this information is vitally necessary to obtain supportive evidence on the stressful events and he should be asked to be as specific as possible because without such details an adequate search for verifying information cannot be conducted. He is further advised that failure to respond can result in adverse action. 4. 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, what was the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the cases of Zarycki and West and the discussion above. In any event, 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 accorded an examination by a board of two VA psychiatrists, if available, who have not previously examined him to identify his symptoms and determine the diagnoses of all psychiatric disorders that are present. The RO must specify for the examiners the stressor or stressors that it has determined are established by the record and 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. The examination report should reflect a review of pertinent material in the claims folder. If the diagnosis of PTSD is deemed appropriate, the examiners should specify (1) whether each alleged stressor found to be established for the record by the RO 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 for the record by the RO and found to be sufficient to produce PTSD by the examiners. The report of examination should include the complete rationale for all opinions expressed. All necessary special studies or tests should be accomplished. The claims folder and a copy of this REMAND must be made available to the examiners for review in conjunction with the examination. 6. The RO should readjudicate the claim in light of all the evidence, including that obtained pursuant to the requested development above. If the veteran continues to disagree with the decision of the RO, and if otherwise appropriate, the RO should issue a Supplemental Statement of the Case and should provide the veteran and his representative an opportunity to respond. Thereafter, the RO should return the case to the Board for further consideration. In taking this action, the Board implies no conclusion, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran until he is notified by the RO. J. F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1993).