BVA9503269 DOCKET NO. 91-40 996 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Whether new and material evidence has been submitted to reopen claims of entitlement to service connection for a skin disease and post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The veteran had active duty from February 1964 to August 1967. In September 1984, the Board of Veterans' Appeals (Board) denied service connection for PTSD on the basis that there was no documented stressor during service; and that PTSD was not a clinically confirmed diagnosis. Service connection for a skin disorder was denied on the basis that it pre-existed, and was not aggravated by, service. This appeal arose from a rating decision in June 1989 of the Department of Veterans Affairs (VA) Regional Office (RO) at New Orleans, Louisiana which found that there had not been submitted new and material evidence to reopen the claims. The Board REMANDED the case in June 1992 for additional service personnel records, specific information about claimed inservice stressful events, additional private and VA clinical records and a VA psychiatric evaluation by a board of 2 psychiatrists. In an April 1994 rating action, the RO characterized the PTSD issue as service connection for PTSD without explicitly finding that the claim was reopened. At the same time, RO (inconsistently) found that the rating decision of June 1989 was confirmed. At this point, the Board does not find new evidence which is not only relevant and probative, but also presents a reasonable possibility, when considered in light of all the evidence, of an allowance. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The evidence submitted thus far does not reopen the PTSD claim principally because there is simply no corroboration of the stressors claimed. (Only where it is determined through recognized military citations or other supportive evidence that a veteran was engaged in combat will the veteran's testimony be accepted as conclusive. See Hayes v. Brown, 5 Vet. App. 60 (1993).) REMAND Not all of the development requested by the Board in the June 1993 remand has been completed. The veteran was asked to supply additional information with respect to the stressors and to treatment, but did not respond. In addition, copies of current VA treatment records have not been associated with the claims file. Finally, since the case was remanded, a number of decisions of the United States Court of Veteran's Appeals (Court) have been promulgated which alter the manner in which PTSD claims should be developed with respect to the stressors claimed. In this case, one of the veteran's principal psychiatric diagnoses is PTSD. Critical elements of this diagnosis, most fundamentally those concerning the existence of a stressor or stressors, appear to be based wholly upon statements of history provided to the various examiners by the veteran. The question of whether the veteran was exposed to a stressor during service is a factual determination and VA adjudicators are not bound to accept such statements simply because treating medical providers have done so. Wood v. Derwinski, 1 Vet.App. 190 (1991) (affirmed on reconsideration, 1 Vet.App. 406 (1991); Wilson v. Derwinski, 2 Vet.App. 614 (1992). Without additional, and specific information from the veteran, corroboration of the stressors claimed may not be possible. Thus, a favorable determination in his case may be predicated upon such corroboration. Service personnel records indicate that the veteran was a document control clerk from August to November 1966, a receipts and shipment clerk from November 1966 to May 1967, and a key punch operator from May to August 1967, all at 388 Supply Squadron, Korat Air Base, Thailand (PACAF). The DD Form 214 (Report of Transfer or Discharge) shows that he received the Vietnam Service Medal, The Vietnam Campaign Medal but no combat citations/medals. With respect to the stressors claimed, the medical evidence shows that on VA psychological evaluation in 1982, the veteran referred to the death of a suspected saboteur during interrogation in service. He essentially reiterated that history according to a VA initial physician's note dated in February 1990, in his hearing testimony in March 1991 and on VA psychiatric examinations in 1993. There have also been references to other stressors. For example, on the 1993 psychiatric examination, he stated that he had duty of loading body bags for shipment back to the United States while he was in Vietnam for two weeks, that he had had a friend whose throat was cut in Thailand; that he had seen men killed and wounded from incoming rounds; and that he had frequently returned fire in Thailand. PTSD was diagnosed. In the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set forth the framework for establishing the presence of a recognizable stressor, which is the 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 of the Court analysis, under 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304 (1994), and the applicable VA's Manual 21-1 provisions, the evidence necessary to establish the occurrence of a 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 a 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 supportive 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 step 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 at 98. In other words, the veteran's assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this activity as a fact. The administrative records on file do not show that he was entitled to receive any award or decoration appropriate to his branch of service denoting participation in combat with the enemy. The Board notes further that the Court has indicated that the mere presence in a combat situation or reporting indirect experiences of an individual is not sufficient to show that he engaged in combat with the enemy. Wood. In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated on the 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. This represents a significant departure in the adjudication of PTSD claims. In this case, the veteran underwent VA psychiatric examinations in 1993 before the sufficiency of the stressors claimed had been specifically adjudicated. 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 the sufficiency of the stressor and as to whether the remaining elements required to support the diagnosis of PTSD have been met. In such a referral, the adjudicators should specify to the examiner(s) precisely what stressor or stressors has 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 veteran was exposed to a stressor and what the nature of the stressor or stressors was to which the veteran was exposed. In other words, if the adjudicators determine that the alleged inservice stressor or stressors did not occur, a medical examination to determine whether PTSD due to service is present would be pointless. Likewise, if the examiners diagnose PTSD not based on just the inservice stressor or stressors the adjudicators accept, the examination would be inadequate for rating purposes. The claim regarding the skin disorder is deferred. In light of the foregoing, and the VA's duty to assist the veteran in the development of facts pertinent to his PTSD claim, the case is REMANDED to the RO for the following actions: 1. With the veteran's written authorization for the release of medical records, the RO should obtain the complete records from State of Louisiana, Department of Health and Human Resources, Office of Mental Health and Substance Abuse, East Jefferson Mental Health Center, P.O. Box 874, 111 North Causeway Boulevard, Metaire, Louisiana 7004, 504-834-9560, on the veteran's treatment beginning on March 17, 1981. 2. The RO should request the complete records of VA Medical Center (VAMC), Jackson, Mississippi, treatment of the veteran from July 14 to August 17, 1982; and August 24 to September 14, 1982; and the complete VAMC and Vet Center records of treatment of the veteran for PTSD since January 1989. 3. The RO should request from the veteran a comprehensive statement containing as much detail as possible regarding the stressors to which he alleges he was exposed during service. He should be asked to provide specific details of the claimed stressful events 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. He should be advised that this information is vitally necessary to obtain supportive evidence of the stressful events and he must be asked to be as specific as possible because without such details an adequate search for verifying information can not be conducted. He should be further advised that failure to respond may result in adverse action. 4. With the additional information obtained, the RO should review the file and prepare a summary of all the claimed stressors. For preparation of the summary, the RO should rely on all relevant statements, testimony and medical histories supplied by the veteran. Some of this information is referred to earlier in this remand. This summary, and all associated documents, should be sent to the United States Army and Joint Services Environmental Support Group, 7798 Cissna Road, Springfield, Virginia 22150. They should be requested to provide any information which might corroborate the veteran's alleged stressors. This should include the obtaining of information pertaining to the activities of the 388 Supply Squadron, Korat Air Base, Thailand (PACAF) between July 1966 and September 1967. 5. Then the RO must make a specific determination, based upon the complete record, with respect to whether the veteran 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 on pages 5 to 7. 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. 6. 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 2 VA psychiatrists, to 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 veteran was exposed to a stressor in service. The examination report should reflect review of pertinent material in the claims folder. The examiners should integrate the previous psychiatric findings and diagnoses of current findings to obtain a true picture of the nature of the veteran's psychiatric status. If the diagnosis of PTSD is deemed appropriate, the examiners should specify (1) whether each alleged stressor found to be established by 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; (3) whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by 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, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD's, should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiners prior to the examination. 7. The RO should then review the record and ensure that all the above actions are completed. When the RO is satisfied that the record is complete and the psychiatric examination, if appropriate, is adequate for rating purposes, the claim should be readjudicated. The readjudication should be consistent with the concerns of the Board which were set forth in Paragraph 4 of the INTRODUCTION section of this decision. If the benefits sought on appeal are not granted to the veteran's satisfaction, a supplemental statement of the case should be prepared and the veteran and his representative should be given a reasonable period of time for reply. Thereafter, the case should be returned to the Board for further review. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. NANCY I. PHILLIPS Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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).