BVA9506652 DOCKET NO. 93-08 499 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel REMAND The veteran had active duty from February 1969 until January 1971. The appellant asserts that he has post-traumatic stress disorder (PTSD) that has resulted from his exposure to traumatic and stressful events while stationed in Vietnam during the Vietnam War. He contends that he has flashbacks and dreams of his war experiences. He states that his PTSD began "about 1971." He further states that his inability to retain employment and his constant thoughts of Vietnam are indicative of PTSD. He claims that he is seeing a psychologist and that he is taking medication for PTSD. There is no indication in the record that he has been diagnosed with PTSD. The RO noted that the veteran failed to report for a scheduled psychiatric examination. The veteran's representative points out that the veteran contends that he did attend a psychiatric rating examination at the VA ambulatory care clinic in Orlando, Florida. His representative believes that the veteran's comments reflect his willingness to report for an examination and requests that the record be returned to the RO for further development. The record reflects that the veteran was seen at the Vietnam Veterans Counseling Center in April 1990. A letter was received from the veteran in November 1992, in which he refers to a notation in the April 1990 to February 1992 outpatient treatment records of a history of drug abuse as mentioned in the supplemental statement of the case dated in October 1992. He wrote: "That was between 1971 and 1979. I was being treated by CDC Dr. Paul G. Seymour and it was not for drug abuse it was for PTS[D]." It is not clear if the reference to treatment by Dr. Paul G. Seymour was during 1971 to 1979 or at a more recent date. The RO indicated that the veteran has not identified a stressor which can be verified. The information given by the veteran regarding stressors was not specific and no stressor has been corroborated. However, the veteran has described as a stressor an incident when he and a friend were in a village, an area where they were not to be present, and soldiers found them. He initially feared that they were caught by the enemy but came to discover that "they worked for the C.I.A." He claims that punishment was the taking away of his rest and relaxation period. The record as it now stands reflects that the veteran's accounts of alleged stressors are vague and raise significant questions as to his credibility that cannot be ignored and are likewise tied to development of the factual record. The question of whether the appellant 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 notes that the Court held in West v. Brown, 7 Vet. App. 70 (1994), in effect, that a psychiatric evaluation based upon an incomplete or questionable history is inadequate for rating purposes and frustrates the efforts of judicial review. In the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set forth the framework for establishing the presence of a recognizable stressor, which is an essential prerequisite to support the diagnosis of PTSD. The Court analysis consists of two major components, with the first component involving the evidence required to demonstrate the existence of an alleged stressful event, and the second involving a determination as to whether the stressful event is of sufficient gravity to support the diagnosis of PTSD. With regard to the first component, under 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304 (1994), and the applicable VA Manual 21-1 provisions, the evidence necessary to establish the occurrence of the recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Hayes v. Brown, 5 Vet.App. 60 (1993). The Court, in Hayes, articulated a two-step process of determining whether a veteran has "engaged in combat with the enemy." First, it must be determined, through recognized military citations or other supporting evidence, that the veteran was engaged in combat with the enemy, and that the claimed stressors are related to said combat. If the determination, with respect to this type, is affirmative, then (and only then) the second step requires that the veteran's lay testimony, regarding the claimed stressors, must be accepted as conclusive after the actual occurrence. Moreover, no further development or corroborative evidence will be required provided that the veteran's testimony is found to be credible and "consistent with the circumstances, conditions, or hardships of such service." Zarycki, at 98. In other words, the claimant's assertions that he fought against an 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." Where the VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. See Hayes, supra. Instead, the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor. Id. Once the occurrence of a stressful episode is established , it then must be determined whether the claimed stressful event was of sufficient gravity to support a diagnosis of PTSD. Review of the record reflects that the veteran's DD Form 214 (Report of Transfer or Discharge), contains no reference to any combat citations. The administrative records now on file do not show that the veteran was entitled to receive the Purple Heart Medal, The Combat Infantryman Badge, or other awards or decorations appropriate to his branch of service denoting participation in combat with the enemy. Further, the Board notes that the Court has indicated that the mere presence in a combat zone is not sufficient to show that an individual was engaged in combat with the enemy. Wood v. Derwinski, 1 Vet.App. 190, 192- 193 (1991), affirmed on reconsideration, 1 Vet.App. 406 (1991). The veteran's DD Form 214 reflects that his specialty was as a cook. In West, the Court elaborated on its analysis in Zarycki, holding 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 PTSD. Zarycki, 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 PTSD 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 PTSD, 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 a medical examination to determine (1) the sufficiency of the stressor; (2) whether the remaining elements required to support the diagnosis of PTSD have been met; and (3) whether there is a link between a currently diagnosed PTSD and a recognized stressor or stressors in service. 38 C.F.R. § 3.304(f) (1994). In such a referral, the adjudicators should specify to the examiner(s) precisely what stressor or 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 the appellant was exposed to a stressor and what the nature of the stressor or stressors was to which the appellant was exposed. 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 PTSD due to service is present would be pointless. Likewise, if the examiner(s) render(s) a diagnosis of PTSD that is not clearly based upon stressors in service whose existence the adjudicators have accepted, the examination would be inadequate for rating purposes. In light of the foregoing, recognizing the VA's duty to assist the appellant in the development of facts pertinent to his claims under the provisions of 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1994) and in an attempt to develop eligibility to be considered by the VA physician, the Board feels that the case should be remanded to the RO for the following actions: 1. The RO should contact the appellant and request that he provide the names and addresses of any health care providers who have treated him for PTSD in the years following service, and, if possible, to specify the appropriate dates of treatment. Then, after any necessary authorization is obtained from the veteran, the RO should obtain copies of all treatment records for the appellant from the health care providers identified. This should include a request to Dr. Paul G. Seymour at the VA Medical Center, 800 Irving Avenue, Syracuse, New York, for records from 1971 to the present time. In any event, copies of any VA treatment records, in addition to the ones already in the file, pertaining to treatment for PTSD, should be obtained and associated with the claims file. 2. The RO should request that the appellant provide another comprehensive statement containing as much detail as possible regarding the stressor(s) to which he alleges he was exposed while in service. The appellant should be asked to provide specific details of the claimed stressful elements 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 appellant is advised that this information is vitally necessary to obtain supportive evidence of the stressful events, and he must be asked to be as specific as possible. He should be informed that without such details an adequate search for verifying information cannot be conducted. He should be further advised that a failure to respond may result in an adverse action against his claim. 3. Thereafter, the RO should contact the Director, National Archives and Records Administration (NARA), ATTN: NCPNA-O, 9700 Page Boulevard, St. Louis, Missouri 63132, and request copies of the morning reports pertinent to the events identified by the appellant. The RO should also attempt to obtain the operational reports, lessons learned statements, or any other information regarding activities that would shed light on events related by the appellant. When this information has been obtained, it, together with the stressor information that has been provided/obtained from the appellant, should be forwarded to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield, Virginia 22150, for verification of the incident or incidents which the appellant reports he re-experiences. Any information obtained is to be associated with the claims folder. 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. 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 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, the RO determines that the record establishes the existence of a stressor or stressors, then the RO should arrange for the veteran to be examined by a Board of two psychiatrists who have not previously examined him to determine the nature and severity of his psychiatric disorder. The RO must specify, for the examiners, the stressor or stressors determined to be established by the record. 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. Each psychiatrist should conduct a separate examination with consideration of the criteria for PTSD. The examination should be conducted in accordance with the VA Physicians Guide for Disability Evaluation Examinations (1985). If the examiners determine that the appellant has any psychiatric disorder in addition to PTSD, they should determine the relationship of any such disorders among themselves (including etiological origin and secondary causation) and specify which symptoms are associated with each disorder. If certain symptomatology is common to more than one disorder, it should be so specified. If a diagnosis of PTSD is appropriate, the examiners should specify whether each alleged stressor found to be established for the record by the RO was sufficient to produce PTSD, whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied, and, whether there is a link between the current symptomatology and one or more of the inservice stressors found by the RO to be established for the record and found to be sufficient to produce PTSD by the examiners. In addition, the examiner should be requested to indicate on the examination report the degree of functional impairment resulting from the psychiatric disorder, with consideration of the effect of the disorder on the appellant's ability to work or to seek work. The report of the examination should include a complete rationale for all opinions expressed. All necessary studies or tests including psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory; the PTSD Rating Scale, the Mississippi Scale for Combat-Related PTSD are to be accomplished. The diagnosis should be in accordance with DSM-IV . The entire claims folder and a copy of this Remand must be made available to and reviewed by the examiners prior to the examination. 6. The examiners should have all pertinent medical records available for review, and the results of prior examinations must be carefully coordinated so that a comprehensive assessment with respect to the impact of the appellant's combined disabilities may be ascertained. Physician's Guide for Disability Evaluation Examinations, § 1.8. 7. The RO should then review the record and ensure that all of the above actions are completed. When satisfied that the record is complete and that the psychiatric examinations are adequate for rating purposes, the RO should assign the proper disability ratings to the disorders shown and readjudicate the claim. After the above requested actions have been completed, the RO should review the appellant's claims with regard to the additional evidence obtained. If any of the benefits sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain additional evidence and to ensure due process of law. No opinion, either legal or factual, is intimated as to the merits of the appellant's claims by this REMAND. No additional action is required by the appellant until he receives further notification from the VA. BETTINA S. CALLAWAY 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).