BVA9507914 DOCKET NO. 93-16 862 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted to reopen the claim for service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran had active service from January 1967 to January 1971 with service in the Republic of Vietnam. His military occupational specialty was as an aircraft structural mechanic. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. REMAND The VA will assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). It is contended by and on behalf of the veteran that he is entitled to service connection for post-traumatic stress disorder (PTSD) in that he has combat related stressors and has been diagnosed by a VA staff physician as suffering from PTSD. The record, which contains private and VA medical documents, shows various diagnoses pertaining to the veteran's psychiatric problems over the years. For example, anxiety neurosis and depressive neurosis (1972), PTSD (1985) and dysthymic disorder and paranoid psychosis (1987-1988). In statements in 1990 and 1992, a VA staff physician, Constance G. Hartwell, M.D., from the outpatient clinic in Boston, Massachusetts, opined that the veteran had PTSD. Critical elements of this diagnosis, most fundamentally those concerning the existence of a stress or stressors, appear to be based wholly upon statements of history provided to the examiner by the veteran. 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). At a personal hearing in May 1993, the veteran testified as to inservice stressors. For example, he related that he was working inside a Phantom Jet inside the hangar when there was a rocket attack. He was upside down in the cockpit doing metal work and was unable to get out. He thought that he was going to die. He thought that this occurred in July 1968. In the time that he was in Vietnam at the DaNang Air Strip, he stated that it was attacked approximately 20 to 30 times. He testified that a good friend (Freddie Perkins) died in Vietnam and he felt a great deal of guilt. Additionally, he said that after five days in Vietnam, he was sleeping in a hut which underwent a rocket attack, and that metal and stones were hitting him as he crawled into a bunker for safety. No attempt to corroborate the veteran's history has been made by the RO. Upon review, it is the Board's conclusion that further efforts in this area are warranted under the duty to assist. Further, the Court of Veterans Appeals (Court) has articulated a number of additional considerations that must be addressed since the case was last reviewed by the RO. These also must be addressed upon REMAND and they are in many respects tied to the development of the factual record. The record shows that the veteran's initial claim for service connection for a psychiatric disorder was filed shortly after service separation. Service connection for anxiety neurosis with depressive neurosis was denied in August 1972. The veteran was notified, but he did not timely appeal. He later filed to reopen his claim and service connection was denied in November 1985. He again reopened his claim in 1990 and service connection was denied for PTSD in July 1990. This appeal ensued following the June 1992 denial which was based on the determination that the objective evidence did not show a life threatening stressor while the veteran was in service. 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 the essential prerequisite to support the diagnosis of PTSD. 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 PTSD. With regard to the first component, the Court analysis, under 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304 (1992), and the applicable M 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 PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet.App. 60 (1993). The Court articulated a two-step process of determining whether a veteran "engaged in combat with the enemy." First, it must be determined through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat. 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 after the 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. In other words, the claimant's assertion 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." In West v. Brown, No. 92-890 (U.S. Vet.App. Aug. 8, 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 PTSD. 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 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 the sufficiency of the stressor and as to whether the remaining elements required to support the diagnosis of PTSD have been met. In such a referral, the adjudicators should specify to the examiner(s) precisely what stressor or stressors has 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 examiners render 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 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) (West 1991), the case is REMANDED to the RO for the following actions: 1. The RO should obtain the veteran's military personnel file. 2. The RO should request from the veteran that he provide any additional details regarding the stressors to which he alleges he was exposed in service. These details should include dates, places, detailed descriptions of events, and any other identifying information concerning any other individual involved in the events, including their full names, ranks, units of assignment or any other identifying detail. Such details are vitally necessary to obtain supportive evidence of the stressful events and he must be asked to be as specific as possible because without such details an adequate search for verifying information can not be conducted. 3. With the additional information obtained, the RO should review the file and prepare a summary of all the claimed stressors based on its review of all pertinent documents, to include the veteran's May 1993 hearing testimony. This summary, and all associated documents, should be sent to the Commandant of the Marine Corp. Headquarters, United States Marine Corps, Code MMRB, Quantico, Virginia 22134-0001. They should be requested to provide any information which might corroborate the veteran's alleged stressors. 4. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the veteran was exposed to a stressor or stressors in service, and if so, what was 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 accorded an examination by a board of two VA psychiatrists 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 purposes of determining whether the appellant was exposed to a stressor in service. The examination report should reflect review of all pertinent evidence in the claims folder. If PTSD is diagnosed, the examiners should specify (1) whether each alleged stressor found to be established by the record by the RO was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) 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 report should include the complete rationale for all opinions expressed. All necessary special studies or tests, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD, should be accomplished. The entire claims folder and a copy of this REMAND 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 are completed. When the RO is satisfied that the record is complete and the psychiatric examination, if appropriate, is adequate for rating purposes, the claim should be re adjudicated by the RO with consideration of 38 C.F.R. § 3.304(f). If the benefit sought on appeal is not granted to the veteran's satisfaction, a supplemental statement of the case should be prepared which includes 38 C.F.R. § 3.304(f), and the veteran and his representative should be given a reasonable period of time for 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 indicate any factual or legal conclusions as to any final outcome warranted in the appeal. EUGENE A. O'NEILL 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).