Citation Nr: 0005180 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-13 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James W. Stanley, Jr., Esq. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran served on active duty from February 1968 to September 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 1998, the RO denied service connection for PTSD and granted an increased rating for hearing loss. The veteran has appealed the denial of service connection for PTSD. FINDING OF FACT The claim of entitlement to service connection for PTSD is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for service connection for PTSD is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Review of the service medical records reveals there were no complaints of, diagnosis of or treatment for any mental disorders while the veteran was on active duty. There was no evidence the veteran had been treated after a near miss from a rocket. He was determined to be psychiatrically normal at the time of the separation examination which was conducted in September 1970. Review of the service personnel records reveals the veteran served in the Republic of Vietnam from September 1969 to September 1970. His Military Occupational Specialty (MOS) was "STK ACCT SPEC." He was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. He was awarded the Army Commendation Medal based on meritorious service. He did not receive any awards or decorations indicative of participation in combat. The 1st Aviation Battalion was awarded the Republic of Vietnam Gallantry Cross Unit Citation for action from July 1965 to October 1968. The veteran submitted a stressor statement in November 1997. He reported the first unit he was assigned to in Vietnam was the 303rd Transportation Company of the 1st Aviation Battalion. He reported he worked as a gunner on trucks which delivered helicopter and aircraft parts to different areas in the Mekong Delta. He reported he was subjected to rocket fire in October 1969 and was hit on the helmet. He wrote he refused treatment at that time. The rocket attack resulted in the wounding and deaths of members of the veteran's company. He reported that Hick, a truck driver, was killed on a hot landing zone at Can Tho. The veteran wrote that a rocket struck Hicks killing him shortly after the veteran had been talking to the man. The rocket also allegedly blew up an ammo dump at the same time and killed other soldiers. The veteran reported that there was nothing left of Hick after the rocket explosion. He further reported that all of Hick's body parts were scattered. The veteran wrote that in January 1970, he was transferred to Qui Nhon with the 241st Transportation Company of the 1st Logistics Command. He reported that when the Tet offensive started in February 1970, his company compound was subjected to frequent mortar fire. The veteran also reported he had frequent nightmares but did not indicate that what he saw in his dreams had actually occurred. Such nightmares included visions of "B-52 and F-16" dropping napalm on U. S. Soldiers and observing soldiers on search and destroy missions burning down hamlets. The report of a November 1997 VA examination has been associated with the claims file. The veteran reported at the time of the examination that he was not receiving any mental health treatment and was not on any medication. The veteran further reported that in 1972, he began experiencing nervousness and tension. He reported experiencing nightmares reliving times in Vietnam and seeing his friends get killed or wounded. The most traumatic event was being subjected to "122mm mortar" fire. The veteran informed the examiner he remembered one person named Hicks who the veteran did not know very well. He further reported that Hicks was killed by a mortar round shortly after the veteran had been speaking to him. The veteran reported Hicks' death occurred somewhere in the delta in October 1969. The impression from the examination was chronic PTSD. The veteran underwent a second VA examination in January 1998. The veteran reported his base camp at Long-Binh was subjected to rocket fire. He further reported a soldier he knew named Hicks was killed when a rocket came into the ammo bunker. The veteran reported he was 100 yards away from the man when he died. He indicated the incident with Hicks occurred in September or October 1969. The veteran reported he observed a helicopter which was blown apart by a surface to air missile in Bong Song sometime in late 1969 near Christmas time. He alleged that the pilot and co-pilot were both killed. He reported he was subjected artillery and rockets at Long-Than. He alleged he was knocked unconscious by one rocket and was treated by a medic at that time. The impression from the examination was chronic delayed PTSD and dysthymic disorder. VA outpatient treatment records have been associated with the claims file. The records evidence impressions of major depressive disorder beginning in February 1998. Excerpts from the Vietnam Veterans Memorial Wall revealed that a Chief Warrant Officer, DAH, was killed on December 4, 1969 in Binh Thuy as a result of a helicopter crash due to hostile action. The soldier was assigned to the 1st Aviation Brigade. The transcript of an October 1998 local RO hearing is of record. The veteran testified he arrived in Vietnam in September 1969 and was assigned to the 303rd Transportation Company located at Long Binh. He testified that his friend Hicks, a helicopter warrant officer, was killed at Long Xuan by a rocket. He testified no one in his unit was wounded. The veteran reported that in February he was assigned to the 241st located at Qui Nhon. While at this location, he reported his primary duty was perimeter guard. He also participated in convoys. While at Qui Nhon, he was subjected to rocket and mortar attack as well as small arms fire. He did not know the names of anyone in his unit that was wounded. A sapper attack occurred at Qui Nhon which the veteran alleged he helped repel. After the attack, enemy bodies were left in the perimeter wire. The attack allegedly occurred during the last part of February of 1970. He testified that he was almost struck by a rocket while stationed at Qui Nhon and was knocked unconscious for approximately 30 minutes. He reported he was treated for a potential head injury at his compound after the incident. The veteran specifically testified that Warrant Officer DAH was the man he saw killed by the rocket. The veteran testified before the undersigned Member of the Board in October 1999. He testified he was assigned to the 303rd Transportation Company from September 1969 to approximately February of 1970. He testified he observed American soldiers blowing up Vietnamese refugees. He reported he was subjected to enemy fire and also fired at the enemy. He testified that Warrant Officer Hicks was killed by a 122mm rocket at Long Dung. The veteran reported he was five or six miles from the man when he was struck by the rocket. He recalled he observed a fixed wing aircraft which was brought down by rocket fire. The veteran testified that in February 1970, he was reassigned to the 241st Transportation Company which was part of the 1st Aviation Brigade. The unit was located in Qui Nhon. He did not recall if anyone was killed or wounded from that unit while the veteran was stationed there. The veteran's representative testified that during the time the veteran was in Qui Nhon, the 1st Aviation Brigade was awarded the Cross of Gallantry Medal which he described as a Vietnamese medal for combat. Criteria Under the provisions for direct service connection for PTSD, 60 Fed. Reg. 32807-32808 (1999) (codified at 38 C.F.R. § 3.304(f)), service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (diagnosis of mental disorder); 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to this 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. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The VA regulation was changed in June 1999 to conform to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court")" determination in Cohen v. Brown, 10 Vet. App. 128 (1997). As the Cohen determination was in effect when the RO reviewed this case, the Board finds no prejudice to the veteran in proceeding with this case at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis The Board finds that the veteran's claim of entitlement to service connection for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a). In this case, the veteran claims to have PTSD as a result of several in-service stressors. The veteran's statements and testimony with respect to his in-service stressors must be accepted as true for the purpose of determining whether the claim is well grounded. See King v. Brown, 5 Vet. App. 19, 21 (1993). Included in the claims file are opinions from VA medical professionals to the effect that the veteran currently has PTSD which is related to his experiences during service. These, too, must be presumed to be credible for the limited purpose of establishing whether the claim of entitlement to service connection for PTSD is well grounded. As the veteran's statements and testimony with respect to his in-service stressors must be accepted as true for the purpose of determining whether the claim is well grounded and as there are current diagnoses of PTSD by competent medical professionals based on these stressors, the veteran's claim for service connection for PTSD is well grounded. To that extent, the appeal is granted. As will be discussed in greater detail below, the Board finds that additional development is necessary and the issue of entitlement to service connection for PTSD is further addressed below in the remand portion of this decision. ORDER The veteran's claim for service connection for PTSD is well grounded. To that extent only, the appeal is allowed. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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 or by the Court 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. Since the veteran's claim of entitlement to service connection for PTSD has been found to be well grounded, VA's statutory duty to assist attaches. 38 U.S.C.A. § 5107 (West 1991). Initially, the Board notes the veteran reported at his October 1998 local RO hearing that he had received treatment at a Vet Center in 1971 or 1972. On the report of a January 1998 VA examination, it was noted the veteran had received treatment at a Vet Center in approximately 1983. The RO has not attempted to secure these records and must do so. See Dunn v. West, 11 Vet. App. 462, 466 (1998), holding that Vet Center records must be obtained and reviewed in a PTSD claim. The Board further notes on a VA clinical record dated in February 1998, it was reported the veteran had received group and individual counseling in 1975 and had been treated with some anti-depressants in 1977. It was not reported if this treatment was at a VA facility. The Board finds, however, the RO must also attempt to secure these records. The veteran served with the Reserves from 1972 to 1994. Medical records from this period of service have not been associated with the claims file. The Board finds the RO should attempt to secure these records. As noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (diagnosis of mental disorder); 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. 38 C.F.R. § 3.304(f) (1999). See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1999). In this case, as there is no evidence that the veteran was engaged in combat with the enemy, there must be corroborative evidence of the claimed in-service stressors. See Zarycki v. Brown, 6 Vet. App. 91 (1993). The Board notes the veteran's representative has reported that the 1st Aviation Brigade was awarded the Cross of Gallantry. However, further review of the claims file demonstrates the medal was awarded for the period from July 1965 to October 1968. The veteran did not begin to serve in Vietnam until September 1969. The Board finds there is no competent evidence of record demonstrating that the veteran participated in combat. While the claims file includes diagnoses of PTSD, these diagnoses of PTSD are based upon reported in-service stressors that have not been verified. Verification of the veteran's reported in-service stressors is necessary. The existence of an event alleged as a "stressor" that results in PTSD, though not the adequacy of the alleged event to cause PTSD, is an adjudicative, not a medical determination. See Zarycki, supra. The sufficiency of the stressor is a medical determination and adjudicators may not render a determination on this point in the absence of independent medical evidence. See West; Colvin v. Derwinski, 1 Vet. App. 171 (1991). As discussed above, the presumption of credibility in King applies only to the matter of the well groundedness of the claim. Once all of the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In so doing, the Board has a duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) and cases cited therein. The Board notes the RO has not attempted to verify the veteran's claimed in-service stressors. Review of the claims file shows the veteran has alleged he was exposed to the following stressors while serving in Vietnam: working as a gunner on convoys; being struck on the helmet during a rocket attack in October 1969 when he either did or did not get knocked out and either refused treatment or was treated for a potential head wound as a result of the attack; witnessing the death of Hick or Hicks who was either a driver or a helicopter pilot and was killed by a rocket or mortar bomb either standing next to a helicopter or by an ammunition dump in Can Tho or Long Xuan or Long Dung or the Delta in September or October 1969; being subjected to frequent mortar fire during the Tet offensive in Qui Nhon in February 1970; witnessing the deaths and wounding of unnamed friends; being subjected to rocket fire at Long Binh; witnessing a helicopter which was blown apart by a surface to air missile which killed the crew in Bong Song sometime in late 1969; being subjected to rocket and artillery attacks at Long-Than; acting as perimeter guard at Qui Nhon when he helped repulse a sapper attack in the last part of February 1970; observing American soldiers blowing up Vietnamese refugees; firing at and being fired upon by the enemy; and observing a fixed wing aircraft which was shot down by a rocket. The Board points out that the veteran's credibility with regard to his alleged in-service stressors is questioned due to conflicting accounts of events such as the evolving description of the death of Hicks versus the cause of death as indicated on the Vietnam Veterans Memorial. However, as the claim is well grounded, VA has a duty to assist. The Board finds some of the above reported stressors are potentially capable of verification. The Board finds the RO should contact the United States Armed Services Center for Research of Unit Records (USASCRUR) and attempt to verify the veteran's claimed in-service stressors. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is remanded to the RO for the following development: 1. The RO should ask the veteran to identify the names, addresses, and approximate dates of treatment by all health care providers, VA and non-VA, inpatient or outpatient, who may possess additional records pertinent to his claim for service connection for PTSD since separation from service. After securing any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment records. The Board is particularly interested in obtaining the treatment records from the Vet Center for 1971-1972 and 1983 and the records of treatment from unspecified sources for 1975 and 1977 and also medical records from the veteran's service with the Reserves. 2. The RO should request the veteran to submit, in writing, as much descriptive information as possible regarding his claimed in-service stressors. The RO must inform the veteran of the importance of the submission of this evidence and that failure to do so may adversely affect the outcome of his claim. 3. After the above development is completed, and even if the veteran does not respond to the request for stressors, the RO must review the claims file and prepare a summary of the claimed stressor(s) based on review of all pertinent documents and the veteran's statements and testimony regarding stressors. This summary, and all supporting documents regarding the veteran's claimed stressor(s), should be submitted to the U. S. Armed Service Center for Research of Unit Records (USASCRUR), at 7798 Cissna Road, Springfield, Virginia 22150. USASCRUR should be informed of the units which the veteran was attached to while serving in Vietnam. The USASCRUR should be requested to verify the occurrence of the incident(s) and any indication of the veteran's involvement therein. If unable to provide such information, USASCRUR should be asked to identify the agency or department that could provide such information and the RO should conduct follow-up inquiries accordingly. The USASCRUR must be asked to respond, either in the affirmative or in the negative, as to the verification of the occurrence of each of the veteran's claimed in-service stressors. 4. Following the above, the RO must make a specific determination, based on the complete record, with respect to whether the veteran was exposed to a stressor or stressors in service, and if so, the nature of the specific stressor or stressors. 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 or prior to 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. If, and only if, confirmed stressors are found to exist based on the instructions in paragraph 4, the veteran should be afforded a VA psychiatric examination by a board of two qualified psychiatrists who, if possible, have not previously examined him, in order to determine whether he has PTSD and its etiology. The RO is to stress to the veteran the seriousness of the scheduled examination, the importance of a definite psychiatric diagnosis, and the obligation of reporting to the examination at the proper place and time. The claims file and a separate copy of this remand must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examinations and the examination reports must be annotated in this regard. Prior to the examinations, the RO is to inform the examiners of the results of its determination in paragraph (4) above as to the existence of a stressor or stressors. The examiners should report all Axis I and II diagnoses present, if any, discuss any psychosocial stressors, and resolve any conflicts found between their findings and the diagnostic findings noted in the evidence associated with the claims file. With regard to PTSD, 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 the appellant was exposed to a stressor in service. The examination reports should reflect review of pertinent material in the claims folder. If a diagnosis of PTSD is made, the examiner(s) should specify; (a) whether each alleged stressor found to be established by the record by the RO was sufficient to produce PTSD; (b) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (c) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiners. The examination reports should include the complete rationale for all opinions expressed. Any necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. 6. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After undertaking any development deemed appropriate in addition to that specified above, the RO should re- adjudicate the issue of entitlement to service connection for PTSD. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals