Citation Nr: 0002016 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 94-11 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for post-operative residuals of a right inguinal herniorrhaphy, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for Post-Traumatic Stress Disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Peter C. Lenart, Associate Counsel INTRODUCTION The veteran served on active duty in the military from February 1966 to February 1968, and again from April 1968 to November 1971. The veteran's duty included service in the Republic of Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) from a June 1991 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, that the veteran had not submitted new and material evidence sufficient to reopen his service connection claim for post traumatic stress disorder (PTSD). At the same time, the RO continued the noncompensable disability evaluation then in effect for his service- connected right inguinal herniorrhaphy. Subsequently, in May 1993, the rating for the right herniorrhaphy was increased to 10 percent, effective from May 1990. The Board notes that in subsequent supplemental statements of the case dated in November 1996, September 1998, and June 1999, the RO treated the claim for service connection for PTSD as if the claim had been denied on its merits, notwithstanding the earlier, June 1991 rating decision that new and material evidence had not been submitted to reopen the claim. It appears that the RO subsequently reopened the claim on the basis of new and material evidence in the form of various diagnoses of PTSD, and that the reopened claim was also found to be well grounded. The Board concurs in these determinations by the RO. REMAND Increased Rating for Residuals of a Right Inguinal Herniorrhaphy The Board finds itself unable to render an appropriate disposition as to this claim on the basis that the most recent comprehensive medical examination regarding this disability dates from March 1993. Governing case law dictates that where entitlement to compensation is already established and the appropriateness of the present rating is at issue, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As the Board is clearly unable to determine the veteran's current level of disability from an examination that is nearly seven years old, the Board finds that the veteran's increased rating claim must be remanded for the purpose of conducting a medical examination. Service Connection for PTSD The veteran alleges that he has PTSD as a result of stressful incidents in service, particularly in Vietnam, such as: (1) receiving a gunshot/shrapnel wound while in service in Vietnam (2) coming under mortar attack while in a truck traveling from Cam Rahn Bay to Nha Trang, and having a military colleague die in that attack, (3) (4) observing a woman tortured, (5) observing enemy prisoners pushed from U.S. helicopters to their deaths, and (6) observing mutilated corpses while working a burial duty upon his return to military service in Pennsylvania and West Virginia. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 137-138 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Doran v. Brown, 6 Vet. App. 283, 289 (1994). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, VA determines either that the veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records that corroborate his testimony or statements. See Zarycki, 6 Vet. App. at 98. A VA psychiatrist and VA licensed clinical social workers who examined the veteran on various occasions from September 1995 to April 1996 diagnosed PTSD, and a VA clinical psychologist who examined the veteran more recently, in December 1998, agreed with their diagnosis. This evidence is not refuted by any of the other medical evidence of record. Therefore, the veteran clearly has a diagnosis of PTSD, so this point is not in dispute. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The dispositive issue thus becomes whether his PTSD is the result of the stressors he allegedly experienced in Vietnam. In the June 1999 supplemental statement of the case, the RO indicated that it had provided the veteran with ample opportunity to submit more specific ("detailed") information concerning the stressors he alleges caused his PTSD-to permit independent objective verification of them- but that he did not respond to the RO's request for this information. There is no confirmation in the claims folder, however, that the RO gave him an opportunity to submit evidence of his service working on burial details upon his return to the United States. In her December 1998 examination, the VA clinical psychologist stated that "the veteran's report of his subsequent stateside assignment to burial detail impressed this examiner as a complex stressor which, under the conditions described, and with prior exposure to related horrors in the war zone, might reasonably constitute a traumatic stressor...which elicits both horror and helplessness." The examiner went on to say that "this type of chronic exposure to death and distress of others (e.g. the handling of caskets, open viewing, and the acute grief of the surviving families) may be comparative to stressors experienced by individuals in crisis or first responder work, who also experience a higher associated risk of developing delayed PTSD or other stress disorders." While the RO attempted to develop information that would verify the stressors alleged by the veteran during his tour of duty in Vietnam, it did not attempt to verify the veteran's duty assignment to burial duty upon his return to the United States. The personnel records in the veteran's claims folder to not delineate such an assignment clearly. Accordingly, based upon the detailed assessment from the VA examiner noted above, and since VA is on notice of a particular duty assignment, the proof of which, if obtained, might provide a basis for granting service connection, the RO should invite the veteran to submit such proof. See Robinette v. Brown, 8 Vet. App. 69 (1995), citing 38 U.S.C.A. § 5103(a). If obtained, the RO then may have sufficient information to again contact the U.S. Armed Services Center for Research of Unit Records, to permit a meaningful search to verify the stressors alleged. See Zarycki v. Brown, 6 Vet. App. 91, 93 (1995); Doran v. Brown, 6 Vet. App. 283, 289 (1994); VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14(b)(5). Further, if either his participation in combat or particular stressful experiences are corroborated, then the veteran should undergo another evaluation by a VA psychiatrist to obtain a medical opinion as to whether his PTSD is the result of a verified stressor in service. See Russo v. Brown, 9 Vet. App. 46, 52 (1996). This is especially important in this case because it appears that all of the diagnoses of PTSD thus far have been based on stressful experiences in service as recounted by the veteran, himself, in the course of being examined and treated, as opposed to based on an actual review of his pertinent medical and personnel records from service and a confirmed stressor. A diagnosis is only as good and credible as the history on which it is predicated. See Reonal v. Brown, 5 Vet. App. 458 (1993); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); Waddell v. Brown, 5 Vet. App. 454, 456 (1993). Accordingly, this case is REMANDED to the RO for the following development and actions: 1. The RO should schedule the veteran for an appropriate VA examination to evaluate the current nature and extent of the residuals of residuals of a right herniorrhaphy. The claims folder should be made available for review by the examiner. All manifestations of residuals attributable to the service-connected right inguinal herniorrhaphy should be described. 2. The RO should request that the veteran provide a comprehensive statement containing as much detail and information as possible concerning the specifics (i.e., the who, what, when and where facts) of the stressors that he alleges to have experienced while in the military-but particularly, the burial assignments he held following his service in Vietnam. It is essential that his statement includes a full, clear and understandable description of the events in question, and that it contains identifying information concerning any other individuals whom purportedly were involved. The veteran must specify whether any of the individuals that he identifies were wounded or killed in Vietnam, and whether he personally witnessed their injuries or deaths, or learned of their tragedies through other means. When identifying these individuals, the veteran must provide their full names, ranks, and unit designations to the company level. He also must provide any information he has concerning other units that were involved, or any other identifying detail such as the best estimate of the date that the alleged incidents occurred and the type and location of the incidents, etc. The veteran's statement should specifically include, but is not limited to, information concerning/from service colleagues who could confirm his assignment to burial duties after his Vietnam service, who can potentially corroborate his allegations. The veteran hereby is informed that the court has held that asking him to provide underlying facts, such as the names of the individuals involved or the dates and the places where the claimed events occurred, does not constitute either an impossible or onerous burden. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. If the veteran submits evidence that corroborates the occurrence of one or more claimed stressful experiences in service, the RO should prepare the report referred to in paragraph 4, and proceed with the development requested in paragraphs 5 and thereafter. Otherwise, the RO should attempt to corroborate the veteran's alleged in-service stressful experiences through all appropriate means, including, but not limited to, contacting the National Archives and Records Administration (NARA) and the U.S. Armed Services Center for Research of Unit Records located at 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197. This may require that the RO first obtain morning reports and/or similar types of clarifying evidence from the National Personnel Records Center (NPRC), or from similar sources, and that the RO submit this information with any that is provided by the veteran, or others acting on his behalf, for consideration. 4. The RO should prepare a report detailing the nature of any in- service stressful experience(s) determined to be established by the record. This report is then to be added to the claims file. If no in- service stressful experience has been verified, then the RO should so state in its report, skip the development requested in paragraphs 5 and 6, and proceed with paragraph 7. 5. After the above development is completed, the veteran should be examined by a VA psychiatrist, preferably who has not previously examined him, to determine whether it is at least as likely as not that his PTSD is the result of his military service, to include in Vietnam. Towards this end, the RO should provide to the examiner the report described in paragraph 4, above, and the examiner must be instructed that only the corroborated stressful experiences referred to therein may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in a current diagnosis of PTSD. If a diagnosis of PTSD is deemed appropriate, then the examiner should explain how the diagnostic criteria of the DSM-IV are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the in-service stressors found to be established by the RO. Similarly, if a diagnosis of another type of psychiatric illness is deemed appropriate, whether in lieu of or in addition to PTSD, the examiner should explain the basis for the diagnosis, as well as comment upon the relationship, if any, between that diagnosis and the veteran's military service. It also is imperative that the examiner review the claims folder, containing all evidence relevant to the case, including a copy of this REMAND. The examination report must be typewritten and include all examination findings and the rationale underlying all opinions expressed, citing, if necessary, to specific evidence in the record. The report should be associated with the other evidence on file in the veteran's claims folder. 6. The RO should review the examination report to determine if it is in compliance with the directives of this REMAND. If not, it should be returned, along with the claims file, for immediate corrective action. See 38 C.F.R. § 4.2. 7. After completion of the foregoing (and any additional development deemed warranted by the record), the RO should review the veteran's claims for an increased rating for his service-connected right herniorrhaphy residuals and service connection for PTSD on the basis of all pertinent evidence of record-to include that added to the record since the issuance of the most recent supplemental statement of the case (SSOC)-and in light of all pertinent legal authority and precedent. The RO must provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in this REMAND. 8. If the benefits sought by the veteran continue to be denied, then he and his representative should be furnished an SSOC and given the opportunity to submit written or other argument in response thereto before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, No. 98-2267 (U.S. Vet. App. May 4, 1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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 Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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 Sate. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedural 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. D. C. Spickler Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).