Citation Nr: 0002948 Decision Date: 02/04/00 Archive Date: 09/08/00 DOCKET NO. 95-11 041 DATE FEB 04, 2000 On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from January 1968 to December 1969, during which he served a one -year tour in Vietnam from February 1968 to July 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 1996 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 1997, the Board remanded this case to the RO for additional development, to include undertaking additional efforts to verify the veteran's claimed stressful in-service experiences. After completing that development to the fullest extent possible, the RO continued the denial of the claim. Hence, the matter has been returned to the Board for further appellate consideration. REMAND Service connection for PTSD requires (1) a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. 3.304(f) (1999). The veteran essentially contends, in both written statements and in testimony he presented during his June 1995 personal hearing before a hearing officer at the RO, that he has PTSD as the result of his experiences in Vietnam. He has asserted a multitude of combat and non-combat stressful experiences in service, to include coming under mortar and sniper attacks while stationed in Qui Nhon and LZ English in 1968 and 1969, and that a fellow serviceman named Powell died next to him in their barracks in September 1968. The RO essentially denied the veteran's claim for service connection for PTSD on the basis that the evidence available for review was inadequate to establish that a stressful experience occurred during service. However, the Board's review of the - 2 - evidence indicates that the veteran has been diagnosed with PTSD by a VA physician, sufficient to render the claim at least plausible and that some claimed stressful incidents during service appear to have been independently corroborated. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." See 38 U.S.C.A. 1154(b) (West 1991); 38 C.F.R. 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat, a determination that is to be made on a case by case basis, requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required - provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, VA determines either that the veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborate his testimony or statements. See Zarycki, 6 Vet. App. at 98. In this case, the veteran's service records do not appear to clearly establish that he engaged in combat with the enemy. His military records show that he was a general supply specialist, and that he served in Vietnam from July 1968 to July 1969 with the 593rd General Supply Group, and the 304th Supply and Service Company. He was awarded the National Defense Service Medal, Republic of Vietnam Campaign Medal, and Vietnam Service Medal. The veteran's service medical and personnel records do not indicate that the veteran was wounded or injured in Vietnam. In response to RO inquiry, the United States Armed Services Center for Research of Units Records (Unit Record Center) provided extracts of an Operational Report - - 3 - Lessons Learned from Qui Nhon for the periods ending October 31, 1968, April 30 and July 31, 1969. These reports indicate that the storage fuel tanks in the area of An Khe received sniper attacks on October 1968; that the Qui Nhon Ammunition Base Depot and the fuel tanks of An Khe received several mortar attacks and small arms fire which resulted in casualties throughout the reporting period. In addition, the reports verify that the Landing Zone English received mortar rounds on March 1 and 20 1969. Additional evidence received, apparently from the National Personnel Records Center and the National Archives, include February 16, 1969 and July 1, 1969 morning reports for 304th Sup. and Svc Co. (DS), 593d GS Op. Gp, listing the veteran. Also received were morning reports and personnel record extracts which, collectively, indicate that SP4E4 Txxx Pxxxx, a member of HQ 5S,3d GS Op, died on September 16, 1968 died from non-hostile causes (generally listed as drowning/suffocation). The information received from official sources appears to verify some aspects of at least two of the veteran's claimed stressful in- service experiences. First, the veteran reported that his bunkmate, Serviceman Powell, died next to him in September 1968. The evidence of record verifies that Serviceman Txxx Pxxxx served in the veteran's unit and died due to nonhostile action on September 16, 1968. Second, the veteran claimed that in October 1968, a radio station tower was attacked and Viet Cong penetrated the camp. Although the veteran also reported that this occurred somewhat distant from him and that he was not directly involved in the attack. The evidence of record verifies that in October 1968, there was an attack at Camp Radcliffe on a perimeter guard tower. The attack began with rocket fire on the guard tower. The Viet Cong did penetrate the camp by cutting the fence. There was incoming mortar rounds and small arms fire. Clearly, the information received from Unit Records Center and other official sources provides no specific corroboration of the veteran's participation in firefights, or that any individuals were killed in connection therewith, or that the veteran was a bunkmate of, or witnessed the death of, former serviceman Txxx Pxxxx. However, to the extent that those records indicate that the veteran may well - 4 - have been present at Qui Nhon, An Khe, and LZ English, the documented base camp area locations of the veteran's unit during his Vietnam tour, where attacks occurred, and that a former member of the veteran's unit did die in Vietnam during his tour, such evidence appear to sufficiently corroborate these aspects of the veteran's claim. In Suozzi v. Brown, 10 Vet. App. 307, 311 (1997), the United States Court of Veterans Appeals (currently the U.S. Court of Appeals for Veterans Claims) [Court] held that by requiring corroboration of every detail. including the veteran's personal participation, VA defined "corroboration" far too narrowly. In Suozzi, the Court found that a radio log, which showed that the veteran's company had come under attack, was new and material evidence to warrant reopening a claim for service connection for PTSD, despite the fact that the radio log did not identify the veteran's participation. The Court further stressed that the evidence favorably corroborated the veteran's alleged in- service stressor. Id. In light of the foregoing, the Board concludes that the occurrence of the death of fellow serviceman Txxx Pxxxx and mortar and rocket attacks near/at the veteran's base camps is established by the evidence of record. However, in addition to verification of an in-service stressor, service connection for PTSD also requires a current diagnosis of PTSD, and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. The Board finds that the evidence of record does not sufficiently resolve the question of whether the veteran currently has PTSD as a result of his verified in- service stressful experiences. The medical evidence of record shows that the veteran was first diagnosed with PTSD in January 1980 upon admission into The Harding Hospital in Worthington, Ohio. Other diagnoses at that time included major depressive disorder, alcohol dependence, antisocial personality features; and grand mal seizure disorder. In April 1993, the veteran was again diagnosed with PTSD, moderate to severe, at St. Ann's Hospital in Westerville, Ohio. Subsequent diagnoses of PTSD were made in February 1995, May 1995, May 1996, July 1996, and April 1997 by the veteran's private counselor, Roseann F. Umana, Ph.D. Dr. Umana indicated that the veteran entered counseling in October 1994 with a history of drug and alcohol abuse. - 5 - Another diagnosis of PTSD was made in May 1995 pursuant to a psychiatric examination at Parkside Recovery Services. The veteran was afforded a fee basis VA examination in February 1996 at the Park Medical Center in Columbus, Ohio. At that time, the veteran was diagnosed with a history of PTSD. Furthermore, in March 1999, the veteran was afforded another PTSD VA fee basis examination. The examiner indicated that the veteran had PTSD symptoms, but that they did not fulfill criteria for PTSD. The examiner noted that the veteran's GAF score range was 70-85, indicating some mild symptoms. The examiner opined that the veteran's problems stem, for the most part, from his pathological personality traits. The examiner also stated that, " [the veteran's] PTSD symptoms which are fairly mild (nightmares approximately once a week) appear to be directly related to his Vietnam experiences." The Board notes that none of the private medical reports that reflect diagnoses of PTSD specifically indicate that either or both of the two in-service stressful experiences subsequently corroborated by the record (i.e., the death of Pxxxxx or rocket and mortar attacks at or near the veteran's base camps) is sufficient to support a diagnosis of PTSD. Moreover, while it appears that the more recent VA examiners both ruled out a current diagnosis of PTSD, those reports, particularly the most recent March 1999 report, includes ambiguous findings (i.e., -@at the veteran may have symptoms of PTSD, but still does not meet the diagnostic criteria for that disorder). Under these circumstances, the Board finds that additional development of the record would be helpful in resolving the issue on appeal, even though it will, regrettably, further delay a decision on the merits of the claim. Accordingly, this case is hereby REMANDED to the RO for the following development and action: 1. The RO should obtain and associate with the claims file all outstanding records of treatment relating to the veteran. This should specifically include any outstanding records of his counselor, Roseann F. Umana, Ph.D., as well as from any other facility or - 6 - source identified by the veteran. The aid of the veteran and his attorney in securing such records, to include providing necessary authorizations, should be enlisted, as needed. However, if any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. After associating with the record The RO should schedule the veteran to undergo a comprehensive VA psychiatric evaluation by a board of at least two VA psychiatrists to ascertain whether the veteran currently suffers from PTSD as a result of his corroborated stressful in-service experiences. The Board emphasizes that the purpose of this evaluation is to reconcile the conflicting medical evidence of record and thus aid in the adjudication of the veteran's claim regarding the question of whether the veteran, in fact, currently has PTSD as a result of his verified in-service stressful experiences. Hence, the examiners should make every effort to reach a consensus on the inquiries posed below and, if at all possible, to render all findings and opinions in a single collaborative report. It is imperative that each of the physicians who is designated to examine, the veteran reviews all the pertinent evidence in his claimsfolder, including a complete copy of this REMAND and all medical evidence and opinions of record all appropriate tests and studies should be conducted, and all clinical findings and diagnoses should be reported in detail. If a diagnosis of PTSD is deemed appropriate, the physician(s) should explain how the diagnostic criteria of the DSM-IV are met,, to include identification of the 7 - specific stressor(s) underlying the diagnosis, and comment upon the link between current symptomatology and one or more of the in- service stressors found to be established. Similarly, if a diagnosis of PTSD is not deemed appropriate, the examiner(s) must fully explain why the diagnostic criteria are not met. The board is instructed that it may only rely upon the stressful in-service experiences that the Board has determined are established by the record (specifically, the death from non-hostile causes of a member of the veteran's unit, and rocket and mortal- attacks near/at base camps of the veteran's unit) for the purpose of determining whether exposure to an in- service stressor or stressors has resulted in the current psychiatric symptoms. The physicians must set forth the rationale underlying, all opinions expressed, citing, if necessary, to specific evidence in the record, in typewritten report(s). The report(s) should be associated with the other evidence on file in the veteran's claims folder. 3. The RO should ensure that all requested development is fully completed in compliance with this REMAND. If any action requested is not undertaken, or is deficient in any manner, necessary corrective action should be undertaken. See 38 C.F.R. 4.2 (1999). 4. After completion of the relevant development above, and after undertaking any additional development deemed warranted by the record, the RO should adjudicate the veteran's claim for service connection for PTSD on the basis of all pertinent evidence of record, and all pertinent legal authority, specifically to include - 8 - doctrine (see 38 U.S.C.A. 5107(b) (West 1991)). The RO should provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in this REMAND. 5. If the benefits sought by the veteran continue to bc@ denied, he and his representative must be furnished an appropriate supplemental statement of the case and given an opportunity to submit written or other argument in response thereto before his case is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence an/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals 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. 1997) (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 - 9 - remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).