Citation Nr: 0005027 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 93-19 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Jacques P. Deplois, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from August 1969 to May 1973. This appeal arises from a November 1992 rating decision of the Portland, Oregon Regional Office (RO) which denied the veteran's claim of entitlement to service connection for PTSD. A Travel Board hearing was conducted in August 1993. The case was remanded from the Board to the RO in March 1994 for additional development of the evidence. The veteran was notified that the member of the Board who conducted the August 1993 Travel Board hearing was no longer at the Board. He was afforded the opportunity to present testimony at another hearing. An October 1998 report of contact indicates that the veteran declined the opportunity to have another hearing. The Board issued a decision in December 1998 denying the veteran's claim of entitlement to service connection for PTSD. The veteran filed an appeal to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court"). In August 1999, the parties submitted a joint motion for remand to the Court. The case is again before the Board pursuant to an August 11, 1999 order of the Court wherein the joint motion was granted, the Board's December 1998 decision was vacated, and the case was remanded to the Board for action in compliance with the joint motion. FINDING OF FACT The August 1997 report of VA examination included a diagnosis of PTSD based on the veteran's report of inservice stressors. CONCLUSION OF LAW The claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim for service connection to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well- grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. The record contains an August 1997 report of VA examination. During this examination, the veteran reported a number of stressors that he experienced while in service. On this basis, the veteran was given a diagnosis of PTSD. Accordingly, the Board finds that the veteran's claim of entitlement to service connection for PTSD is well grounded. ORDER The claim of entitlement to service connection for PTSD is well grounded. To this extent only, the appeal is granted. REMAND It is noted that effective March 7, 1997, VA revised the regulations pertaining to PTSD to conform with the decision of Cohen v. Brown, 10 Vet. App. 128 (1997). Prior to March 7, 1997, the following regulation was in effect: (f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder 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 medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. Additionally, if the claimed stressor is related to the claimant having been a prisoner-of-war, prisoner-of-war experience which satisfies the requirements of § 3.1(y) of this part will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (as in effect prior to March 7, 1997). In June 1999, revised regulations concerning post traumatic stress disorder were published in the Federal Register which reflected the decision in Cohen v. Brown, 10 Vet. App. 128 (1997). The regulations were made effective from the date of the Cohen decision. The RO should utilize the revised regulation which provides as follows: (f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; 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 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 clamed 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. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of Sec. 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, 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. 38 C.F.R. § 3.304(f) (as in effect from March 7, 1997). Applicable regulations also require that relevant evidence submitted by the veteran to the Board after the record has been certified to the Board, must be referred to the RO for review and the preparation of a supplemental statement of the case unless this procedural right is waived by the veteran or if the benefit sought on appeal may be allowed. 38 C.F.R. § 20.1304. Additional medical evidence dating from August 1999 was received in January 2000, or within 90 days of the December 15, 1999 letter from the Board to the veteran's representative indicating that this claim had been returned to the Board from the Court. This additional medical evidence is material to the veteran's claim and the representative explicitly noted that the veteran did not waive referral to the RO; thus, the case must be returned to the RO. Moreover, the existing evidence of record is not considered sufficient to permit adjudication of the claim at this time. As the claim of entitlement to service connection for PTSD is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Accordingly, the RO should obtain all current treatment records relative to the veteran's treatment for PTSD. The veteran should then be afforded another VA psychiatric examination in which the examiner should render an opinion as to whether the veteran suffers from PTSD that is the result of the veteran's only verified stressor event; that is, a rocket attack. In view of the foregoing, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran's representative, and all relevant medical records subsequent to March 1998 pertaining to treatment for PTSD should be obtained to include those from the Roseburg VA medical center. Once obtained, all records must be associated with the claims folder. 2. The veteran should be afforded a VA psychiatric examination. The examiner must be provided with the July 1997 report from U.S. Armed Services Center for Research of Unit Records (USASCRUR) along with all associated documents provided by the USASCRUR relative to the verified stressor involving a rocket attack. The claims file must be made available to and be reviewed by the examiner before the examination. a. The examination is to be conducted in accordance with the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), and all appropriate studies are to be performed. b. The examiner should determine if the veteran has PTSD. c. If the examiner believes that PTSD is the appropriate diagnosis, he or she must specify whether the diagnosis of PTSD may be based on a rocket attack which is the only verified stressor in the veteran's case. d. The examiner should reconcile any diagnosis and/or conclusion(s) that conflict with those previously made regarding the veteran's psychiatric condition, and provide detailed reasons for any disagreement. 3. 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 medical review does not include all opinions requested, appropriate corrective action is to be implemented. 4. When the above developments pertaining to the PTSD issue have been completed, the case should be reviewed by the RO. If the decision remains adverse to the veteran, he and his representative should be issued a supplemental statement of the case. This must contain the latest regulations concerning service connection for PTSD. The veteran and his representative should be afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain additional medical information. No inference should be drawn regarding the final disposition of the veteran's claims as a result of this action. This claim 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 Appeals for Veterans Claims 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. Iris S. Sherman Member, Board of Veterans' Appeals