BVA9506306 DOCKET NO. 93-16 380 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been presented to reopen the veteran's claim of entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from August 1961 to June 1968. This appeal arises from a December 1991 rating decision of the Department of Veterans Affairs (VA), Boston, Massachusetts, Regional Office (RO). In that decision, the RO denied the veteran's request to reopen his claim of entitlement to service connection for post-traumatic stress disorder (PTSD). In written argument submitted to the Board of Veterans' Appeals (Board) dated in March 1994, the veteran's accredited representative in this case has raised the issues of clear and unmistakable error in a September 6, 1979, rating decision in which service connection for an acquired psychiatric disorder and service connection for a back disability were denied. He has also raised the issues of service connection for a genitourinary disorder and service connection for the residuals of a head injury to include organic brain syndrome. At an October 1992 personal hearing, the veteran's representative requested that the veteran's PTSD claim be amended to include the issue of service connection for an acquired psychiatric disorder. The issue of service connection for an acquired psychiatric disorder has been denied in a prior final rating decision. Thus, the issue of whether new and material evidence has been presented to reopen that claim as well as the additional issues raised and referred to above are referred to the RO for appropriate action. REMAND The Board notes that the record on appeal includes several diagnoses of PTSD. In an October 1991 psychological assessment from the Traumatic Stress Disorder Center of the Boston, Massachusetts, VA Medical Center, the veteran recounted several incidents which he claims are the stressors which precipitated the PTSD. At that time, he reported extensive exposure to combat including having participated in 12 patrols, regularly being stationed at forward observation posts, receiving incoming fire approximately 50 percent of his tour in the Republic of Vietnam, several times encountering mines and booby traps, frequently receiving sniper fire, being ambushed 10 times, engaging in firefights over 50 times, being surrounded by enemy forces on 10 occasions, and killing enemy soldiers in hand to hand combat using only a knife. He also reported witnessing "interrogating" of soldiers by the removal of limbs and being pushed out of helicopters. He also reported witnessing the death of fellow soldiers by friendly fire. A review of the record indicates that pertinent development remains to be accomplished. In particular, it does not appear that the RO has attempted to verify the stressful events related by the veteran from the United States Army and Joint Services Environmental Support Group (ESG). The Board has determined that the RO should forward to the ESG information regarding the veteran's unit of assignment, and his duties and responsibilities during his tour in Vietnam, including the veteran's DA Form 20 as well as a description of the claimed stressors. In order to facilitate this information request, the RO should request that the veteran provide detailed information including the specific combat incident(s) to within seven days, type and location, numbers, and full names of casualties, and other units involved. The RO should ensure that the veteran's full service personnel file is associated with the records assembled for appellate review. Additionally, the Board notes that pertinent medical records may be available which have not been associated with the records assembled for appellate review. On an application for compensation dated on August 23, 1971, the veteran reported that he had received treatment for "nerves" from Dr. Thornton in July 1971. If available, records of this treatment should be obtained. The hospital summary for the veteran's period of hospitalization at the VA hospital in Bedford, Massachusetts, during August and September 1971 reflects that the veteran reported problems since his discharge from the Army and that psychological testing was done. Complete clinical records, including consultation reports, psychological testing results, doctor's orders and nurses notes, for this period of hospitalization should be obtained and added to the records assembled for appellate review. In adjudicating a claim for service connection for PTSD, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f) (1993); see Hayes v. Brown, 5 Vet.App. 60, 66 (1993). Additionally, service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by the medical evidence, between current symptomatology and the claimed inservice stressor. See Zarycki v. Brown, 6 Vet.App. 91, 97 (1993). 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 suffi- cient 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. Id. at 79. 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. Id. at 78. 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 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 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 stressors to which the veteran was exposed during service were of sufficient severity as to have resulted in current psychiatric symptoms. 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 is pointless. Likewise, if the examiners render 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. The Board notes that the veteran was afforded a VA examination for purposes of the current appeal in November 1992 at which time the examiner rendered a diagnosis which included PTSD. However, based on the above discussion, such an examination was clearly premature in view of the fact that the existence of the alleged stressor or stressors have not been established by the record. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1993). Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). The record reflects that the veteran received counseling for PTSD at the Vet Center in Brockton, Massachusetts, between May 1991 and May 1992. The record indicates that the veteran has received treatment at the Day Hospital Program of the Brockton, Massachusetts, VA Medical Center since March 1992, and at the Mental Hygiene Clinic for weekly therapy. The RO should procure the complete treatment and/or counseling records from those facilities. In light of the foregoing, and in order to fairly and fully adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request from the appropriate service department source copies of the veteran's complete personnel file. Those records should be associated with the claims file. 2. The RO should obtain copies of medical records from Dr. Thornton for treatment of the veteran in July 1971 for "nerves," as well as complete clinical records for 1971 from the VA hospital in Bedford, Massachusetts, including consultation reports, psychological testing results, doctor's orders and nurses notes, for the period of hospitalization during August and September 1971. The RO should also procure all counseling/treatment records from the following facilities: Brockton, Massachusetts, Vet Center, from May 1991 to May 1992; Brockton, Massachusetts, Day Hospital Program and Mental Hygiene Clinic dated from March 1992 through the present. 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 in service. The veteran should be asked to provide specific details of the claimed stressful events during service, such as dates, places, detailed descriptions of events and identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment or any other identifying detail. The veteran is advised that this information is vitally necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information can not be conducted. 4. With the additional information obtained and the evidence currently of record, the RO should review the file and prepare a summary of all the claimed stressors. This summary, together with a copy of the DD 214 and the DA Form 20, or equivalent, 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 that might corroborate the veteran's alleged stressors. 5. 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 two VA psychiatrists, if available, who have not previously examined him to determine the diagnosis 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 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 exami- nation report should reflect review of pertinent material in the claims folder. The examiners should integrate any previous psychiatric findings and diagnoses with current findings to obtain a true picture of the nature of the veteran's psychiatric status. It the diagnosis of PTSD is deemed appropriate, the examiners should comment upon the link between the current symptomatology and one or more of the inservice stressors found to be established by the RO. 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 Mississippi Scale for Combat-Related post- traumatic stress disorders, should be accomplished. The claims folder, or copies of all pertinent records, must be made available to the examiners for review prior to, and during, the examination. 6. The RO should then review the record and ensure that all the above actions have been completed. When the RO is satisfied that the record is complete and the psychiatric examination is adequate for rating purposes, the claim should be readjudicated. If the determination remains adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. GARY L. GICK 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 deter- mination. 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).