BVA9501196 DOCKET NO. 93-08 682 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a headache disorder. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for alcohol and drug abuse. 4. Entitlement to an increased evaluation for residuals of a left ankle fracture, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from September 1967 to September 1970. In a May 1974 rating decision, the Department of Veterans Affairs (VA) Winston-Salem, North Carolina, Regional Office (RO) denied service connection for a headache disorder. The appellant received notification of that rating decision in May 1974 but did not file an appeal within one year thereafter. Another rating decision by the RO in April 1977 again denied entitlement to service connection for a headache disorder, and the appellant did not file an appeal within one year after receiving notification of that rating decision in April 1977. This appeal comes before the Board of Veterans' Appeals (Board) from an April 1991 rating decision by the RO, which found that new and material evidence had not been submitted to permit reopening of the claim of entitlement to service connection for a headache disorder, denied entitlement to service connection for a skin disorder and alcohol/drug abuse, and denied entitlement to an increased evaluation for residuals of a left ankle fracture. The appellant's claim originally included the issue of entitlement to service connection for an ulcer disorder; however, service connection was granted for ulcer disease secondary to the medications the appellant took for his service-connected left ankle disability by the hearing officer at his March 1992 personal hearing, and was implemented in a September 2, 1992, rating decision. Hence, the issue of entitlement to service connection for ulcer disease is not for appellate consideration. REMAND The appellant asserts that he has a headache disorder that resulted from several bangs to the head he received in service and some crooked vertebrae in his neck. He argues that his current skin disorder is related to the skin problems he experienced in service. He maintains that his alcohol and drug abuse problems have resulted from psychiatric disease that had its origins in service. He also claims that his service- connected residuals of a left ankle fracture are manifested by pain and swelling that are prevalent during the winter months (cold weather) and cause problems with walking. Review of the claims file reveals that, although the appellant claims that his residuals of a left ankle fracture have worsened, the most recent medical evidence pertaining to the left ankle is dated in October 1989, which shows that he was fitted for a brace in an attempt to reduce the symptomatology associated with the left ankle. There is no recent orthopedic examination of the left ankle with which to evaluate the degree of disability currently manifested in the ankle. Service medical records show that the appellant was treated during service for scattered skin lesions. The Board also notes that the appellant contends that his alcohol and drug abuse has result from an acquired psychiatric disorder that he claims is of service origin. In July 1988, he stated that he had posttraumatic stress disorder (PTSD). However, the issue of entitlement to service connection for an acquired psychiatric disorder has not been developed by the RO. In the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the United States Court of Veterans Appeals (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, with the first component involving the evidence required to demonstrate the existence of an alleged stressful event; and the second involving 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, under 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304 (1994), 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." Hayes v. Brown, 5 Vet.App. 60 (1993). The Court, in Hayes, articulated a two-step process of determining whether a veteran has "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 that the claimed stressors are related to said combat. If the determination, with respect to this type, is affirmative, then (and only then) the second step requires that the veteran's lay testimony, regarding the claimed stressors, must be accepted as conclusive after the actual occurrence. Moreover, no further development or corroborative evidence will be required provided that the veteran's testimony is found to be credible and ". . .consistent with the circumstances, conditions, or hardships of such service." Zarycki, at 98. In other words, the claimant's assertions that he fought against an 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, 7 Vet. App. 70 (1994), the Court elaborated on 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. Zarycki, 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) (1994). 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 examiner(s) render(s) 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. VA has a duty to assist the appellant in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The Court has held that when the Board believes the medical evidence of record is insufficient it may supplement the record by ordering a medical examination. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The Court has stated that VA's statutory duty to assist includes issues raised in all documents or oral testimony submitted prior to a Board decision, not just those derived from a liberal reading of the appellant's substantive appeal. "EF" v. Derwinski, 1 Vet.App. 324 (1991). The Court has also said that where additional issues have been raised, but not certified, which are "inextricably intertwined," appellant action prior to development by the originating agency of all intertwined issues would be premature. Harris v. Derwinski, 1 Vet.App. 180 (1991). The Board believes that an orthopedic examination is necessary for proper evaluation of the appellant's residuals of a left ankle fracture, and that there is an inextricably intertwined issue presented in his contention that his alcohol and drug abuse are secondary to psychiatric problems that are of service origin. Therefore, all action necessary to develop the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, should be completed by the RO. Accordingly, this case is REMANDED for the following actions: 1. The RO should contact the appellant and request that he provide the names and addresses of any health care providers who have treated him for PTSD, or any other psychiatric disorder, in the years following service, and, if possible, specify the appropriate dates of treatment. Then, after any necessary authorization is obtained from the veteran, the RO should obtain copies of all treatment records for the appellant from the health care providers identified. In any event, copies of any VA treatment records, along with those located at the Topeka, Kansas, VA Medical Center, pertaining to treatment for PTSD, should be obtained and associated with the claims file. 2. The RO should request that the appellant provide a comprehensive statement containing as much detail as possible regarding the stressor(s) to which he alleges he was exposed to while in service. The appellant 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 appellant is advised that this information is vitally necessary to obtain supportive evidence on the stressful events and he must be asked to be as specific as possible. He should be informed that, without such details, an adequate search for verifying information cannot be conducted. He should be further advised that a failure to respond may result in an adverse action against his claim. 3. Thereafter, the RO should contact the Director, National Archives and Records Administration (NARA), ATTN: NCPNA-O, 9700 Page Boulevard, St. Louis, Missouri 63132, and request copies of the morning reports pertinent to the events identified by the appellant. The RO should also attempt to obtain the operational reports, lessons learned statements, or any other information regarding activities that would shed light on events related by the appellant. When this information has been obtained, it, together with the stressor information that has been provided/obtained from the appellant, should be forwarded to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield, Virginia 22150, for verification of the incident or incidents which the appellant reports he re-experiences. Any information obtained is to be associated with the claims folder. 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 reaching 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. The RO should arrange for the appellant to be examined by a Board of two psychiatrists to determine the nature and severity of any psychiatric disorder. The RO must specify, for the examiners, the stressor or stressors that the RO has determined are established by the record. 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. Each psychiatrist should conduct a separate examination with consideration of the criteria for PTSD. The examination should be conducted in accordance with the VA Physicians Guide for Disability Evaluation Examinations (1985). If the examiners determine that the appellant has any psychiatric disorder in addition to PTSD, they should determine the relationship of any such disorders among themselves (including etiological origin and secondary causation) and specify which symptoms are associated with each disorder. If certain symptomatology is common to more than one disorder, it should be so stated, and the disorders identified. If a diagnosis of PTSD is appropriate, the examiners should specify whether each alleged stressor found to be established for the record by the RO was sufficient to produce PTSD; whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and, whether there is a link between the current symptomatology and one or more of the inservice 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 the examination should include a complete rationale for all opinions expressed. All necessary studies or tests including psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory; the PTSD Rating Scale, the Mississippi Scale for Combat-Related PTSD are to be accomplished. The diagnosis should be in accordance with DSM-IV . The claims folder and a copy of this Remand must be made available to and reviewed by the examiners prior to the examination. 6. The RO should schedule the appellant for examination by an orthopedist in order to ascertain the nature and severity of the residuals of his left ankle fracture. All indicated special studies should be performed, including range of motion studies and X-ray examination, if not medically contraindicated. The claims file and a copy of this REMAND are to be made available for the examiner prior to the examination. 7. The RO should schedule the appellant for examination by an dermatologist in order to ascertain the nature and severity of any current skin disease the appellant may have. All indicated special studies should be performed, if not medically contraindicated. The examiner should be requested to express an opinion as to the etiology of all currently manifested skin diseases, particularly whether they are related to any skin problems shown in service. The claims file and a copy of this REMAND are to be made available for the examiner prior to the examination. 8. The RO should review the examination reports to determine if they are adequate for rating purposes and in compliance with this remand. If not, they should be returned to the examiner for supplemental action. After the above requested actions have been completed, the RO should review the appellant's claims with regard to the additional evidence obtained. If any of the benefits sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. Appellate consideration of the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a headache disorder is deferred pending completion of the above-requested development. The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant is afforded due process of law. No opinion, either legal or factual, is intimated as to the merits of the appellant's claims by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. JACK W. BLASINGAME 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 so assigned. 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) (1994).