Citation Nr: 0004217 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-07 405 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for claimed post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from July 1951 to April 1955. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the RO. The Board remanded the case in October 1998 for additional development. FINDING OF FACT The veteran has presented a claim of service connection for PTSD which is plausible and capable of substantiation. CONCLUSION OF LAW The veteran has submitted evidence of a well-grounded claim of service connection for PTSD. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, one who submits a claim for benefits under a law administered by VA has 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). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The regulations concerning the adjudication of claims involving entitlement to service connection for PTSD have changed. In June 1999, revised regulations concerning PTSD were published in the Federal Register which reflected the decision of the Court in Cohen v. Brown, 10 Vet. App. 128 (1997). The changes to 38 C.F.R. § 3.304(f) were made effective the date of the Cohen decision. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 64 Fed. Reg. 32,807- 32808 (1999) (codified at 38 C.F.R. § 3.304 (f)); Cohen v. Brown, 10 Vet. App 128 (1997). To establish a well-grounded claim of service connection for PTSD, there must be medical evidence showing a diagnosis of PTSD, lay evidence of a stressor in service (presumed credible for purposes of well groundedness), and medical evidence of a nexus between the diagnosis and stressor. See Cohen v. Brown, 10 Vet. App. at 137. Here, the record includes the recent December 1998 report of a VA examination which establishes that the veteran has a diagnosis of PTSD due to "[s]tressor related to exposure to circumstances while stationed in Korea." However, the examiner did not identify an independently verified stressor sufficient to support that diagnosis. As the veteran's testimony, for the purposes of well groundedness, is sufficient evidence to establish an in- service stressor, and because the VA medical evidence contains a diagnosis of PTSD attributable to the veteran's reported in-service stressors, the Board finds the claim of service connection for PTSD to be well grounded. 38 U.S.C.A. § 5107. ORDER As the claim of service connection for PTSD is well grounded, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. 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); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78. VBA's Adjudication Procedure Manual, M21-1, Part III, 5.14(b)(3) provides, "In cases where available records do not provide objective or supportive evidence of the alleged in[-]service traumatic stressor, it is necessary to develop for this evidence." The adjudication manual also provides, "If a VA examination or other medical evidence establishes a valid diagnosis of PTSD, and development is complete in every respect but for confirmation of the in[-]service stressor, contact [the United States Armed Services Center for the Research of Unit Records]." The record included an April 1998 PTSD Questionnaire in which the veteran detailed his claimed experiences in Korea. The veteran reported that he had witnessed, at "Suwon City," in the spring of 1953, children climb through barbed wire fences and eat food from the trash thereafter become ill. Additionally, the veteran reported that the unit to which he had been assigned while in Korea had helped build the "51st airstrip at Suwon for jet aircraft." Furthermore, the veteran reported that he had witnessed a soldier die as he returned to "Akak compound." The veteran stated that the dying soldier had grabbed him by the legs and that he had been unable to break loose. The veteran also stated that he had flown on a "C124" from Seoul, Korea to Japan to attend training and that the plane had crashed on the return flight the next morning and killed everyone on board. The veteran also indicated that he had been stationed at Fairchild Air Force base and assigned to the "530th MATRON" and that, after his unit reported to Korea, his unit had been assigned to the "802nd Aviation Engineers (SCARWOFF)." The veteran also reported a history of stressors in a May 1998 VA PTSD examination. The report of examination noted that the veteran had mild symptoms of anxiety and that he was generally functioning well. The report noted a diagnosis of anxiety disorder, not otherwise specified. In a July 1998 RO hearing, the veteran testified to additional details regarding his claimed in-service stressors. The veteran also testified that he had witnessed soldiers treat civilians inhumanely and that he had been threatened and told not to report what he had witnessed. When the Board remanded the case in October 1998, it was requested that the veteran be contacted in order to have him provide specific details regarding his claimed inservice stressful events. The RO requested this information in November 1998; however, the veteran did not respond to this request. The record also indicates that the veteran again reported his stressors during a December 1998 VA PTSD examination, but specific information to facilitate verification of the claimed stressors was not provided. The Board observes that the record indicates that the United States Armed Services Center for the Research of Unit Records has not been contacted in an attempt to verify the veteran's claimed in-service stressors. The Board further observes that portions of the veteran's service record, including a DA Form 20 and a DD Form 230, are associated with the claims folder. These records indicate that the veteran had served in Korea and participated in two campaigns from April to July 1953. The RO should again contact the veteran and request that he provide specific information regarding each claimed service stressor. The Board emphasizes, for the veteran's benefit, that the duty to assist is not a one-way street. If the veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Court has held that requiring a claimant to provide this information to VA does not represent an impossible or onerous task. Id. at 193. Additionally, the Board observed in the October 1998 Remand that certain VA medical records were not associated with the claims folder. Specifically, VA outpatient treatment records from September 1997 noted that the veteran had been administered several tests, including the PTSD Scale, Dementia Rating Scale and the Minnesota Multiphasic Personality Inventory 2, and that full reports were to have followed. These reports, as well as any additional outpatient treatment records, are not associated with the claims folder. VA medical records concerning treatment prior to a Board decision are constructively deemed to be before the Board. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Because the record indicates that all relevant VA medical records have not been associated with the claims folder, the veteran's claim must be remanded for further development. Therefore, the Board finds that a remand is required in this case. The veteran has put VA on notice that competent evidence exists that might support his claim of service connection for PTSD. In light of the foregoing, the Board is REMANDING this case to the RO for the following actions: 1. The RO should take appropriate action once again to contact the veteran in order to request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for PTSD since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, to specifically include the VA outpatient testing reports indicated in the September 1997 VA outpatient treatment records, which have not been previously secured. 2. The RO should also take appropriate steps to contact the veteran in order to afford him another opportunity to provide more specific information regarding the claimed stressors to which he was exposed during his period of service in order to assist in verification. He should be instructed to provide specific details of the claimed stressful events during service, to include dates, places, detailed descriptions of the events, his service units, duty assignments and the names and other identifying information concerning any individuals involved in the events. The veteran should be informed that the Court has held that requiring a claimant to provide this information to the VA does not represent an impossible or onerous task. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. Then, the RO should review the claims folder thoroughly and prepare a summary of all stressors alleged by the veteran. This summary of stressors, with specific details regarding the veteran's alleged stressors, and all associated documents, including the veteran's service records associated with the claims folder, should be sent to USASCRUR, 7798 Cissna Road, Suite 101, Springfield, Virginia 22150- 3197. That agency should be requested to provide any information which might corroborate the veteran's alleged stressors, including operational orders and other pertinent reports pertaining to the veteran's units. 4. The RO should then schedule the veteran for VA examination in order to determine the nature of the claimed psychiatric disorder. All indicated testing should be performed. The claims folder should be made available to the examiner for review in connection with evaluation. Based on his/her review of the case, the examiner should specifically include or exclude a diagnosis of PTSD. If PTSD is diagnosed, then the criteria and the specific stressor(s) sufficient to support the diagnosis should discussed. The examiner must make any diagnosis of PTSD based on the diagnostic criteria as set forth in DSM IV. 5. After undertaking any additional development deemed appropriate, the RO should review the veteran's claim. Due consideration should be given to all pertinent laws, regulations, and Court decisions. If the benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); Kutscherousky v. West, 12 Vet. App. 369 (1999). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals