BVA9502793 DOCKET NO. 93-04 371 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Arizona Veterans Service Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from January 1970 to January 1974 and from December 1982 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) from a June 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied service connection for post-traumatic stress disorder (PTSD). REMAND The veteran contends that the RO committed error in denying his claim for service connection for PTSD. Specifically, he contends that he has had emotional difficulties since his first period of service and that he has difficulty describing the stressful situations that he experienced during that period of service. The Board notes that there is evidence in the claims file that the veteran currently suffers from PTSD. For example, letters dated May 1992 from Dr. George E. Bryan, a private physician, and Dr. Clifton B. Davis, Chief, Psychiatry Service, Department of Veterans Affairs Medical Center, Prescott, Arizona, show that these physicians are in agreement as to the current diagnosis of PTSD. The Board also observes that the RO denied the veteran's claim for service-connection for PTSD because the evidence did not demonstrate a stressor in service of such severity to cause PTSD. The Board recognizes that the RO did attempt to obtain detailed information from the veteran regarding stressors that he experienced during service and that the veteran has given a somewhat vague history of his experiences in Vietnam. His DD 214 shows that he received, among others, the Republic of Vietnam Campaign Medal and the Vietnam Service Medal. His military occupational specialities (MOS) appear to have been that of ammunition storage specialist and aircraft mechanic. The veteran also testified at his personal hearing that he was initially trained as a jet mechanic. He further testified that he later underwent training to become an air crewman. He testified that as part of this training he was put in a "hot box." A 1987 medical report from a service department doctor shows a history, apparently provided by the veteran, of his having served as an air crewman in air sea rescue, of having received his air crew flight wings, of having spent nine months assigned to the U.S.S. Enterprise in the Gulf of Tonkin, of having participated in air sea rescue missions, and of having received commendation for rescuing two pilots. The service medical records corroborate that the veteran served aboard the U.S.S. Enterprise and that he underwent a medical examination to become an air crewman in May 1972. A doctor's notation in the service medical records in August 1973 states that the veteran had just returned "from a West Pac deployment 2 months ago." This medical notation also reflects that the veteran reported having financial problems at home, having problems with habitual tardiness at work, and having recently broken up with a girlfriend. The doctor's impression was transient situational adjustment reaction. A December 1988 notation of a Dr. Nan Kribs in the claims file states that the veteran "has had a great deal of experience with bodies during the [service]. He also spent a good deal of time in country recovering downed pilots." The question of whether the veteran was exposed to a stressor in service is a factual determination, and VA adjudicators are not bound to accept a veteran's statements in this regard simply because treating medical providers have done so. Wood v. Derwinski, 1 Vet.App. 190 (1991), aff'd on reconsideration, 1 Vet.App. 406 (1991); Wilson v. Derwinski, 2 Vet.App. 614 (1992). Although the RO made efforts to obtain details about the veteran's service from the veteran, the Board concludes that in this case further efforts are warranted under the duty to assist. 38 U.S.C.A. § 5107(a) (West 1991). Moreover, since this case was last reviewed by the RO, the United States Court of Veterans Appeals (Court) has articulated certain factors to be considered in adjudicating claims for service connection for PTSD. These factors concern the development of the factual record and must be addressed upon remand. Service connection for PTSD requires (1) medical evidence establishing a clear diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). With regard to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 1991). The Court has held that "[w]here 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.'" Zarycki v. Brown, 6 Vet.App. 91, 98 (1993) (emphasis added); 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1994). 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) (1994); Doran v. Brown, 6 Vet.App. 283, 289 (1994); Zarycki, 6 Vet.App. at 98. The evidence in this case does not show that the veteran had a combat MOS or that he received awards or decorations appropriate to his branch of service denoting participation in combat with the enemy. In addition, the veteran's testimony about his claimed air sea rescue missions was vague; for example, he could not remember whether during these missions he had ever been under fire. Moreover, as best as can be determined from all the evidence in this case, the veteran appears to be claiming two stressful events during service: being put in a "hot box" during military training to become an air crewman and participating in five to ten missions into Vietnam to rescue downed airmen. The Board notes that the first event, an experience that was part of a military training exercise, is not combat-related and therefore the veteran's lay testimony alone is not sufficient to establish its occurrence. Doran, 6 Vet.App. at 289-90. With regard to participation in the five to ten air rescue missions, the Board notes that veteran is vague about these missions. As noted above, he cannot remember whether he ever came under fire during them; he has not alleged any specific stressful event with regard to any of these missions; he has not provided details that might be used in verifying his participation in these missions, such as the names of those he served with; the names of pilots rescued, the capacity in which he served, e.g., as a helicopter or plane mechanic, perhaps. It may be possible that a veteran who did not have a combat MOS and did not receive combat awards or decorations nevertheless "engaged in combat with the enemy." However, unless other service department evidence can be developed to show such engagement, the veteran must provide evidence to corroborate his testimony that the stressor he claims to have experienced in service actually did occur . 38 C.F.R. § 3.304(f) (1994); Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1991); Zarycki, 6 Vet.App. at 92, citing Manual M21-1, Part VI, para. 7.46(e) ("Other supportive evidence [of participation in a stressful episode] includes, but is not limited to, plane crash, ship sinking, explosion, rape or assault, duty on a burn ward or in graves registration unit."). In attempting to obtain this evidence, the RO should inform the veteran that his own cooperation is essential to this task. The Court has noted that in cases such as this one, "[t]he factual data required, i.e., names, dates and places, are straightforward facts and do not place an impossible and onerous task on [the veteran]. The duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet.App. at 193. If upon remand the RO is unsuccessful in developing evidence to show that the veteran engaged in combat with the enemy, the RO must inform the veteran that he is required to submit "other credible supporting evidence," such as the statements of fellow service members who witnessed the stressful events that the veteran alleges he experienced in service. 38 C.F.R. § 3.304(f) (1994); Doran, 6 Vet.App. at 289. If sufficient evidence is developed so that the RO finds as fact that the alleged stressor actually occurred, the next step in adjudicating the claim is to determine whether the stressful event was sufficiently grave or severe so as to cause PTSD. The Court has held that this determination is a medical matter, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. West v. Brown, 7 Vet.App. 70, 78-79 (1994). In addition, the Court noted in a recent case that "[a]lthough the [Diagnostic and Statistical Manual of Mental Disorders (3rd. ed. Rev.)] notes that the most common trauma or stressor which causes PTSD is 'a serious threat to one's life or physical integrity,' it also lists several other traumas not involving a life-threatening stressor to the afflicted individual which would support a PTSD diagnosis." Duran v. Brown, No. 93-388, slip op at 11 (U.S. Vet.App. Dec. 13, 1994). Consequently, the Court held that, while the documentation of a "life-threatening" stressor certainly supports a PTSD diagnosis, such a stressor is not a required element for a PTSD diagnosis. Duran, slip op. at 11. Finally, the Board notes that, should adjudication of the claim reach the stage where the RO must determine whether the evidence establishes a link between an inservice stressor and the veteran's current symptomatology, the RO must also consider the evidence of an intervening traumatic event in this case, i.e., the evidence that the veteran was involved in a serious motorcycle accident in 1974 during which his fiance was killed and he suffered serious injuries which rendered him unconscious for three months. In light of the foregoing and to ensure that the VA has met its duty to assist the claimant in developing facts pertinent to the claim, the case is REMANDED to the RO for the following developments: 1. The veteran should be asked to provide a list of names and addresses of all those who have provided treatment for his psychiatric disorder since the RO last obtained records of treatment. The RO should obtain all the records of any treatment reported by the veteran. 2. 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. He should be asked to identify the type of award or commendation he received or his unit received for rescuing a pilot from the Gulf of Tonkin, an event about which he testified at his hearing. The veteran should be asked to provide specific details of the claimed stressful events he experienced 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 veteran should be asked under what circumstances he performed aircrew duty (i.e., emergency, part-time between regular duties, full-time, etc.); what function he performed (observer, flight maintenance, gunner, cargo handler, flare kicker, etc.); and whether he was on flight orders or received flight pay. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful events he claims to have experienced, and he must be asked to be as specific as possible because without such details an adequate search for verifying information cannot be conducted. He should also be advised to submit any verifying information that he can regarding the stressors he claims to have experienced in service, such as statements of fellow service members who also were put in the "hot box" as part of air crew training or who participated in the air sea rescue missions with the veteran. He is further advised that failure to respond may result in adverse action. 3. The RO should contact the service department and ask them to conduct a special search for additional service personnel records pertaining to this veteran. Any additional records should be associated with the claims folder. 4. Whether or not the additional information is obtained, the RO should review the file and prepare a summary of all the claimed stressors. This summary, and all associated documents, should be sent to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield, Virginia, 22150- 3197. This organization should be requested to provide any information which might corroborate the veteran's alleged stressors. This should include obtaining information pertaining to the activities of the U.S.S. Enterprise from approximately September 1972 to June 1973 including information perhaps recorded in the Deck Logs and/or Ship Histories regarding enemy action and in the Muster Rolls regarding the assignment of the veteran to and from the ship and stations. The ESG should also check, if possible, if aircrew orders are in the veteran's military personnel file or if there is any other information in the veteran's personnel records that might corroborate his claimed participation in air sea rescue missions in Vietnam. 5. Following the above, the RO must make a specific determination, based upon the complete record, as to whether the veteran "engaged in combat with the enemy." If so, the RO should accept the veteran's lay testimony -- in the absence of evidence to the contrary and as long as it is "satisfactory" (i.e., credible) and consistent with the circumstances of service -- as conclusive evidence of the occurrence of the stressor. (Whether the stressor was sufficiently grave or severe to cause PTSD is another question which must be resolved later). If the RO determines that the evidence does not show that the veteran "engaged in combat with the enemy," the RO should consider all credible supporting evidence developed to show that the veteran did experience the alleged stressors and determine whether the evidence is sufficient to establish the occurrence of the stressor. 6. If, and only if, the RO determines that the evidence establishes the occurrence of the alleged stressor or stressors, then the RO should schedule the veteran for a comprehensive VA psychiatric examination to be conducted by an examiner who has never previously examined or treated the veteran to determine the diagnoses of all psychiatric disorders that are present. The entire claims folder and a copy of this remand must be made available to the examiner prior to this examination. 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 appellant was exposed to a stressor in service. The examination report should reflect review of pertinent material in the claims folder. The examiner 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 examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record and found sufficient to produce PTSD by the examiners. In considering the second point, the examiner should review the extensive medical evidence in the veteran's claims folder about the injuries he sustained in a motorcycle accident in February 1974, and the examiner must express an opinion as to the likelihood that the veteran's current symptomatology is linked to that traumatic event as opposed to the established inservice stressor or stressors. Should the examiner be of the opinion that both inservice and postservice stressors contributed to the veteran's current symptomatology, the examiner must express an opinion as to the degree to which each event is likely to have contributed to the veteran's current symptomatology. 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 Post-Traumatic Stress Disorders, should be accomplished. 6. 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, including if the requested examination does not include all test reports, special studies or adequate responses to the specific opinions requested, appropriate corrective action is to be implemented. If the decision remains unfavorable following completion of these actions, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. JOAQUIN AGUAYO-PERELES 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 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).