Citation Nr: 0004422 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-08 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from January 1945 to June 1946 and from September 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Boston, Massachusetts, which, in pertinent part, denied a claim by the veteran seeking entitlement to service connection for PTSD. FINDINGS OF FACT The claims file contains evidence of a current diagnosis of PTSD, lay evidence of inservice stressors, and of a plausible relationship between PTSD and service. CONCLUSION OF LAW The claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Laws & Regulations The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Generally, a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim for entitlement to service connection is well grounded when there is (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. 498, 506 (1995) (citations omitted), aff'd 78 F.3d 604 (Fed. Cir. 1996). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. In determining whether a claim is well-grounded, the supporting evidence is presumed to be true. King v. Brown, 5 Vet. App. 19, 21 (1993). A claim for service connection for PTSD is well grounded when the veteran has submitted: (1) medical evidence of a current diagnosis of PTSD; (2) lay evidence (presumed credible for these purposes) of an inservice stressor(s); and (3) medical evidence of a nexus between service and the current PTSD disability. Gaines v. West, 11 Vet. App. 353, 357 (1998) (citing Cohen v. Brown, 10 Vet. App. 128, 136-37 (1997)); see also Caluza, 7 Vet. App. at 506; 38 C.F.R. § 3.304(f) (1999). Once well-groundedness has been established, service connection may be established for a current disability in several ways including on a "direct" basis. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303(a), 3.304 (1999). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires that the evidence show the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (1999). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required to satisfy the second element. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Psychoses are presumed to have been incurred in service if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). The Board notes at the outset of this decision that, when the RO rendered its rating decision on this claim, it did not initially determine whether the veteran had met his burden of submitting a well-grounded claim, the establishment of which is necessary to trigger VA's statutory duty to assist the veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Instead, the RO assisted the veteran in developing facts pertinent to his claim, including scheduling a VA examination. See Grivois v. Brown, 6 Vet. App. 136, 139-40 (1994). Therefore, the Board will consider all the evidence of record, including that resulting from VA assistance, in determining whether the veteran's claim is well grounded in this case. II. Analysis In this case, the Board concludes that the veteran's claim for service connection for PTSD is well grounded. First, the Board finds that the claims file contains competent evidence of a current diagnosis of PTSD. This is shown by the January 1997 VA examination report, which diagnosed the veteran with PTSD. In addition, the Board finds lay evidence of inservice stressors. The January 1997 VA examination report provides the following stressors: (1) the veteran witnessed a man skinned alive, surviving for a time in agony; (2) the veteran was forced to close a bulkhead during a damage control procedure aboard the U.S.S. New Jersey, even though there were fellow crewmembers trapped below who would die; and (3) the veteran saw the aftermath of the atomic bombing of Japan. Finally, the claims file contains medical evidence linking the current PTSD diagnosis to service, namely to the alleged stressors. The January 1997 VA examination report's PTSD diagnosis was based on the above stressors reported by the veteran. Gaines v. West, 11 Vet. App. at 357; see also Caluza v. Brown, 7 Vet. App. at 506; 38 C.F.R. § 3.304(f) (1999). ORDER The claim of entitlement to service connection for PTSD is well grounded. REMAND Because the claim of entitlement to service connection for PTSD is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C. A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Here, the Board finds that further evidentiary development is needed prior to appellate review. First, the law provides that entitlement to service connection for PTSD requires (1) medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that an inservice stressor(s) occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressors. 38 C.F.R. § 3.304(f) (1999); Gaines, 11 Vet. App. at 357 (citing Cohen v. Brown, 10 Vet. App. 128, 136-37 (1997)). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Id.; 38 U.S.C.A. § 1154(b) (West 1991); see also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993) (Where 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.'). 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. Rather, his testimony must be corroborated by "credible supporting evidence" and must not be contradicted by service records. 38 C.F.R. § 3.304(f) (1999); Zarycki, 6 Vet. App. at 98. "Credible supporting evidence" of combat may be obtained from many sources, including, but not limited to, service records. There is "an almost unlimited field of potential evidence to be used to 'support' a determination of combat status." Gaines, 11 Vet. App. at 359. However, "credible supporting evidence" of the actual occurrence of an inservice stressor cannot consist solely of after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389 (1996). In this case, the RO apparently determined that the veteran did not engage in combat with the enemy and held that his claimed stressors were "not verifiable." However, the Board finds that no United States Armed Services Center for Research of Unit Records (USASCRUR) (formerly United States Army & Joint Services Environmental Support Group (ESG)) report was requested or obtained by the RO to attempt to verify the veteran's alleged stressors. Second, the Board notes that the regulations pertaining to entitlement to service connection for PTSD were amended during the pendency of this appeal. See 38 C.F.R. § 3.304(f) (1998), amended by 64 Fed. Reg. 32807 (June 18, 1999). Hence, as this claim was still pending on that date, the revised version must be considered. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (where the law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been conducted, the version of the law or regulation most favorable to the veteran shall be applied). Third, the Board finds that the RO has not fulfilled its duty to inform the veteran of evidence needed to complete his claim. See 38 U.S.C.A. § 5103(a) (West 1991). The United States Court of Appeals for Veterans Claims (formerly Court of Veterans' Appeals) has held that the duty to inform includes advising the veteran that evidence, the existence of which the VA has notice and which may make a claim plausible, was needed to complete his claim. Robinette v, Brown, 8 Vet. App. 69, 80 (1995). Here, the claims file shows that the veteran submitted his claim in December 1996, was provided VA PTSD examination in January 1997, and was denied entitlement to service connection for PTSD in May 1997. At no time was the veteran informed of the evidence needed to develop or complete his claim. No correspondence to the veteran requesting a description of his inservice stressors or a submission of any pertinent medical records was sent. This action must be completed prior to appellate review. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and provide him the opportunity to identify all sources of treatment received for PTSD since service, and to either submit such records himself or furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. The veteran should also be informed that information, including times, places, dates, and circumstances, of any inservice stressors would be helpful, if not vital, to his claim, and that, if he is able, a detailed description of such stressors should be submitted. Copies of all correspondences made and records obtained should be added to the claims folder. 2. Thereafter, the RO should make an initial determination as to whether or not the veteran engaged in combat with the enemy during service, as per 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304(f), and the relevant case law. The version of 38 C.F.R. § 3.304(f), most favorable to the veteran should be employed. Karnas, supra. If the RO determines that the veteran did not engage in combat with the enemy during service, it should attempt to verify the veteran's alleged stressors, namely (1) witnessing a man skinned alive, surviving for a time in agony; (2) being forced to close a bulkhead during a damage control procedure aboard the U.S.S. New Jersey, even though there were fellow crewmembers trapped below who would die; and (3) seeing the aftermath of the atomic bombing of Japan. It should do so by contacting the USASCRUR, 7798 Cissna Road, Springfield, VA 22150, and requesting any and all pertinent information in regard to the veteran's alleged stressors during active duty with the United States Navy Reserves, aboard the U.S.S. New Jersey, from December 4, 1945, to May 2, 1946. 3. After the foregoing is completed, if it is determined that the veteran did not engage in combat with the enemy during service and there are verified stressors other than those already considered during the prior VA PTSD examination, then the RO should arrange for the veteran to be accorded another VA PTSD examination to determine whether he currently has PTSD, based on such verified stressors. The RO must specify for the examiner the stressor or stressors that it has determined are established by the record and the examiner must be instructed that only those events may be considered for the purpose of determining whether exposure to a stressor in service has resulted in current psychiatric symptoms and, whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. The entire claims folder and a copy of this REMAND must be made available to and reviewed by the examiner prior to the examination. All necessary studies or tests are to be accomplished. A typed report of the examination, with a complete rationale for all opinions expressed, should be created. A copy of said report should be made part of the claims folder. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have 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 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. See 38 C.F.R. § 4.2 (1999). 5. After the above development has been completed, the RO should review the veteran's claim of entitlement to service connection for PTSD. The new DSM-IV criteria and the Court's decisions in Cohen and Gaines, supra, must be considered. Also, the RO should ensure that its readjudication of the PTSD claim includes consideration of the revised version of 38 C.F.R. § 3.304(f). 6. If the action is adverse to the veteran, he and his representative should be furnished a Supplemental Statement of the Case which summarizes the pertinent evidence, fully cites the applicable legal provisions, and reflects detailed reasons and bases for the decision reached. Thereafter, the veteran and his representative should be afforded the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to attend a scheduled VA examination, if determined by the RO to be necessary, may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Appeals for Veterans Claims 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. 1999) (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. A. BRYANT Member, Board of Veterans' Appeals