BVA9502709 DOCKET NO. 93-07 688 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder and, if so, whether the reopened claim may be granted. REPRESENTATION Appellant represented by: American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from February 1968 to November 1969. He served in Vietnam from November 1968 to November 1969. From November 1968 to February 1969, he served in the field artillery with Battery A of the 6/77th Artillery. From February 1969 to March 1969, he was a cannoneer with C Battery, 6th Battalion, 77th Artillery, 54th Artillery Group. From March 1969 to April 1969, he was an ammunition handler with the Service Battery of the 6th Battalion, 77th Artillery. From April 1969 to November 1969, he was a cannoneer with D Battery, 2nd Battalion, 4th Artillery, 9th Infantry Division. A review of the evidence of record discloses that, in a decision entered in April 1989, the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, denied service connection for a psychiatric disorder, to include post-traumatic stress disorder. A statement of the case was issued in January 1990 and the veteran was informed that month that should he not respond within 60 days, it would be assumed he did not intend to complete his appeal. A timely appeal was not perfected and, therefore, the decision became final. No claim may be thereafter reopened and allowed based upon the same factual basis. 38 U.S.C.A. §§ 5108, 7105 (West 1991). Accordingly, upon receipt of the veteran's application to reopen, the RO should have characterized the issue in this case as whether new and material evidence has been submitted following entry of the RO decision in April 1989, which would permit the veteran to reopen his previously denied claim of entitlement to service connection for post-traumatic stress disorder. The RO characterized the issue in this case as that of service connection for post-traumatic stress disorder. However, in its statement of the case, finality of the prior RO decision was discussed. In its reasons for decision, the RO indicated that the evidence the veteran had submitted provided a sufficient enough basis that reconsideration of his claim might result in approval of it. The Board believes this is sufficient to determine that the veteran had submitted sufficient evidence to reopen his claim of entitlement to service connection for post- traumatic stress disorder. The United States Court of Veterans Appeals (Court) has held that when the Board addresses in its decision a question that has not been addressed by the RO, the Board must consider whether the claimant has been given adequate notice to respond and, if not, whether the claim has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In this instance, the Board finds that the additional evidentiary assertions by the veteran and the evidence added to the record since 1989 are sufficient to constitute new and material evidence to reopen the claim. King v. Brown, 5 Vet.App. 19 (1993). This question having been wholly resolved in the veteran's favor, no prejudice arises from the Board's determination. Further, the Board notes that evidence which is new and material is, by its very nature, sufficient to render the claim well-grounded to cross the threshold of 38 U.S.C.A. § 5107(a) (West 1991), thus, triggering the VA's duty to assist under 38 U.S.C.A. § 5107(b) (West 1991). Gobber v. Derwinski, 2 Vet.App. 470, 471 (1992). REMAND A review of the evidence of record indicates the veteran's principal psychiatric diagnosis is post-traumatic stress disorder. Critical elements of this diagnosis, most fundamentally those concerning the existence of a stressor or stressors, appear, however, to be based wholly upon statements of history provided by the veteran. 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 such statements simply because treating medical providers have done so. Wood v. Derwinski, 1 Vet.App. 190 (1991) (affirmed on reconsideration, 1 Vet.App. 406 (1991)); Wilson v. Derwinski, 2 Vet.App. 614 (1992). The Board finds the RO has not made any specific attempt to corroborate the veteran's history. Further action in this area is clearly warranted under the duty to assist. The Board further notes that in the case of Zarycki v. Brown, 6 Vet.App. 91 (1993). The United States Court of Veterans' Appeals (Court) set forth the framework for establishing the presence of a recognizable stressor, which is the essential prerequisite to support the diagnosis of post-traumatic stress disorder. The Court analysis divides into two major components: The first component involves the evidence required to demonstrate the existence of an alleged stressful event; the second involves a determination as to whether the stressful event is of the quality required to support the diagnosis of post-traumatic stress disorder. With regard to the first component of the Court analysis, under 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304 (1992), and the applicable VA's Manual 21-1 provisions, the evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for post-traumatic stress disorder will vary depending on whether or not the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet.App. 60 (1993). Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized military citations or other service department evidence. In other words, the claimant's assertions that he "engaged in combat with the 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." If the determination with respect to this step is affirmative, then (and only then), a second step requires that the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development or 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 such service." Zarycki at 98. A review of the record reveals that the veteran was awarded the Army Commendation Medal on two occasions. The citations are not in the claims folder. His DD Form 214 (Report of Transfer or Discharge) contains no reference to any combat citations. There is no indication that the award was provided for other than meritorious service. The Board notes that the Court has indicated that the mere presence in a combat situation or the reporting of indirect experiences of an individual is not sufficient to show that he was engaged in combat with the enemy. Wood. 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 sufficient to give rise to post-traumatic stress disorder. 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. The Court also held in West that a psychiatric examination for the purpose of establishing the existence of post-traumatic stress disorder 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 post-traumatic stress disorder, 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 medical examination to determine the sufficiency of the stressor and as to whether the remaining elements required to support the diagnosis of post-traumatic stress disorder 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 appellant 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 post- traumatic stress disorder due to service is present would be pointless. Likewise, if the examiners render a diagnosis of post-traumatic stress disorder that is not clearly based upon stressors in service whose existence adjudicators have accepted, the examination would be inadequate for rating purposes. The Board notes that when the veteran was accorded a rating examination by VA in January 1991, notation was made that the veteran had had multiple diagnoses in the past 2 or 3 years, including major depression, dysthymia, explosive personality disorder, post-traumatic stress disorder, personality disorder and alcohol dependence. It was indicated he had some symptoms of post-traumatic stress disorder, but did not appear to meet the "full" criteria for that disorder. Initially, the Board notes that since the claim was received at the Board in April 1993, additional evidence in the form of VA outpatient treatment records has been received. This additional evidence was received without waiver of the veteran's right to have that evidence initially considered by the RO. Any pertinent evidence submitted by the veteran or representative which is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case, unless this procedural right is waived with the appellant. See 38 C.F.R. § 20.1304(c) (1993). The veteran has not waived his procedural rights and, in view of other necessary developments described below, this claim is returned to the RO for consideration of the evidence submitted directly to the Board. In light of the foregoing, and the VA's duty to assist the veteran in the development of facts pertinent to his claim, as mandated by 38 U.S.C.A. § 5107(a), the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and obtain the names and addresses of all mental health care providers from whom he has received treatment for post-traumatic stress disorder in the recent past. Then, after any necessary authorization is obtained from the veteran, the RO should obtain copies of any treatment records identified. The VA Medical Center in Nashville, Tennessee, should also be contacted and asked to provide the complete clinical records pertaining to treatment of the veteran since March 1994. 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. 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 details. 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 cannot be conducted. 3. With the additional information 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, 7798 Cissna Road, Springfield, Virginia 22150. They should be requested to provide any information which might corroborate the veteran's alleged stressors. The RO should further contact the service department and attempt to obtain a copy of the award orders or the citations for the award of the Army Commendation Medal to the appellant in order to determine whether the award was for other than meritorious service. 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, the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the cases of Zarycki and West and the discussion above on pages 5 to 8. 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 is 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, 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 diagnoses 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 post-traumatic stress disorder have been satisfied. The examination report should reflect review of pertinent material in the claims folder. The examiners should integrate the previous psychiatric findings and diagnoses with current findings to obtain a true picture of the nature of the veteran's psychiatric status. If the diagnosis of post-traumatic stress disorder 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 must be made available to the examiners prior to 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 benefit sought on appeal is not granted to the veteran's satisfaction, a supplemental statement of the case should be prepared and the veteran and his representative should be given the applicable period of time to reply. Thereafter, the claim should be returned to the Board for further review, if otherwise in order. No action is required of the veteran until he receives further notice. The Board does not intimate any factual or legal conclusions as to any final outcome warranted in the appeal. CHARLES E. HOGEBOOM 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 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).