BVA9500665 DOCKET NO. 93-06 118 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a neck disability. 5. Entitlement to service connection for a lung disability. 6. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from January 1962 to July 1968 and from April 1980 to August 1988. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his original March 1989 claim for compensation, the veteran claimed entitlement to service connection for blisters on both hands as the result of exposure to Agent Orange. The new regulations pertaining to Agent Orange, now expanded to include all herbicides used in Vietnam, provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era. 59 Fed. Reg. 5106 (1994) (to be codified at 38 C.F.R. § 3.307(a)(6)). The regulations also stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 59 Fed. Reg. 5107 and 29724 (1994) (to be codified at 38 C.F.R. § 3.309(e)). The specified diseases are chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, soft-tissue sarcoma, multiple myeloma and respiratory cancers. Id. Further, the Secretary of Veterans Affairs formally announced in the Federal Register on January 4, 1994, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for certain conditions, to specifically include circulatory disorders or for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 59 Fed. Reg. 341 (1994). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit recently determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir.1994). However, the United States Court of Veterans Appeals (Court) has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). This claim has not been adjudicated by the RO and is not before the Board at this time. It is referred to the RO for appropriate action, with specific reference to VBA Circular 21-94-1 (February 15, 1994). The veteran also claimed entitlement to service connection for what was later referred to as a heart condition. At the hearing held before a hearing officer at the RO in July 1991, the veteran specifically withdrew this claim. While this claim will not be discussed by the Board at this time, it is important that the RO receive a written statement from the veteran specifically withdrawing this claim. 38 C.F.R. § 20.204(b) (1993). REMAND The veteran claims entitlement to service connection for post- traumatic stress disorder (PTSD). Review of the veteran's post- service medical evidence of record reveals that at a May 1991 VA examination the veteran was diagnosed with PTSD. In view of this evidence, the veteran's claim of entitlement to service connection for PTSD appears to be well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). Zarycki v. Brown, 6 Vet.App. 91 (1993). While the veteran has been diagnosed with PTSD, critical elements of this diagnosis, most fundamentally those concerning the existence of a stressor or stressors, appear to be based wholly upon statements of history provided to the various examiners 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). In the case of Zarycki v. Brown, the Court set forth the analytical framework for establishing the presence of a recognizable stressor, which is the essential prerequisite to support a diagnosis of PTSD after the claim has been found to be well-grounded. 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 whether the stressful event is of the quality required to support the diagnosis of PTSD. 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. 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 Action Ribbon, or other awards or decorations appropriate to his branch of service denoting participation in combat with the enemy. The undersigned Member of the Board notes that the veteran has testified that he was exposed to combat during his service in Vietnam, including being involved in a mortar attack, having his unit surrounded by the enemy at Chu Lai during the Tet offensive, and assisting in the carrying of the wounded. However, the Court has indicated that the mere presence in a combat situation of indirect experiences of an individual is not sufficient to show that he was engaged in combat with the enemy. Wood at 193. If the record does not contain recognized military citations or other supportive evidence that the veteran was "engaged in combat with the enemy," the Court held in Zarycki that the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor. Zarycki at 98 (emphasis added). Accordingly, the next question to be addressed is whether the record now corroborates the veteran's accounts as to the occurrence of the alleged stressful events. The case of Zarycki makes clear that the veteran's lay testimony, by itself, will not be enough to establish the alleged stressor. Id. On the basis of a review of the evidence of record, neither the service administrative nor any medical records provide any support for these accounts. In summary, the record, at present, does not corroborate the veteran's accounts of his alleged stressful events under the standards set forth in Zarycki. With regard to the second component under Zarycki, there are multiple psychiatric diagnoses for the veteran. While a diagnosis of PTSD was entered on VA examination in May 1991, and the PTSD unit at the Togus VA Medical Center appears to have diagnosed PTSD, the Board must note that the record also contains an April 1990 VA psychiatric examination, which concluded that the veteran did not suffer from a psychiatric disability. Further, an April 1989 VA psychiatric examination made no diagnosis of PTSD. It also appears that the veteran, according to his own accounts, may have undergone numerous stressful events during his employment as a police officer in Detroit, Michigan. The current record does not demonstrate that any diagnosis of PTSD has been based upon the existence of "stressors" in service confirmed in the manner set forth in Zarycki. As stated in Wilson v. Derwinski, 2 Vet.App. 614 (1992): Just because a physician or other health professional accepted appellant's description of his Vietnam experiences as credible and diagnosed appellant as suffering from PTSD, does not mean the Board was required to grant service connection for PTSD. Although the examiner can render a current diagnosis based on his examination of the veteran, it bears emphasis that, without a thorough review of the record, his opinion regarding etiology can be no better than the facts alleged by the veteran. Swann v. Brown, 5 Vet.App. 229, 233 (1993). In effect, it is mere speculation. See Black v. Brown, 5 Vet.App. 177, 180 (1993). Furthermore, with respect to the question of whether the alleged stressful event is of the quality required to support the diagnosis of PTSD, the Wood case noted above is instructive as to the standards articulated by the Court. See Wood at 192-93. 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 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 a 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 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. The problems that arise within the appellant's claim of entitlement to service connection for PTSD, in light of Zarycki and West, are clear. In order for the veteran to succeed in this claim, the veteran's stressors must be verified and must form the basis of a diagnosis of PTSD. With regard to the veteran's claims of entitlement to service connection for right knee, back, neck, lung and right shoulder disabilities, a review of the veteran's service medical record reveals sporadic and isolated incidents of treatment for several of these disabilities. However, there is currently no medical evidence indicating that any of these conditions were chronic in nature during the veteran's active service or can be reasonably associated with the veteran's current complaints. Further, during numerous service medical examinations, the veteran made no complaints concerning these conditions. Moreover, based on a review of the June 1990 VA examination, it is unclear if the veteran currently suffers from several of these conditions. The Court has held that a lay party is not competent to provide probative evidence as to matters requiring expertise derived from specialized medical education. Espiritu v. Derwinski, 2 Vet.App. 492, 494, 495 (1992). Further, in Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992), the Court, finding no evidence of a current disability, held that the claim was not plausible and, therefore, not well grounded. Moreover, the Court has held that, where determinative issues involve medical causation or a diagnosis, there must be competent medical evidence supporting a claim to make it "plausible" and, thus, well grounded. Grottveit. The veteran has testified that service medical records from his period in Vietnam are missing. On the basis of a preliminary review of the veteran's claims folder, the Board finds no obvious indication that the service medical records are incomplete. This matter, however, merits further development since the veteran's assertions are sufficient to make a preliminary finding at this time that his claims are "capable of substantiation," and thus well grounded. The question as to whether his claims of entitlement to service connection for a right knee, neck, back, lung and right shoulder disabilities are ultimately well-grounded must be deferred pending the development indicated below. VA has a duty to assist the veteran in the development of facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1993). The Court has held that the duty to assist includes the duty to obtain thorough and contemporaneous VA examinations, including examinations by a specialist when indicated, and the duty to obtain pertinent medical records. Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). Where the record before the Board is inadequate to render a fully informed decision on the issue of service connection, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). In view of the state of the record, the undersigned concludes that further development, as specified below, is required: 1. The RO should contact the veteran and request that he identify the specific dates and places of medical treatment which he believes he received in service which are not now of record. The veteran is advised that it is very important that he be specific as possible in supplying this information as effective searches for such records are dependent upon the quality of the information provided to the service department. The RO should then make an appropriate request to the service department to search for those records. Dixon v. Derwinski, 3 Vet.App. 261 (1992). 2. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers who may possess additional records pertinent to his claims. With any necessary authorization from the veteran, the RO should attempt to obtain copies of those treatment records identified by the veteran which have not been previously secured. 3. The veteran should be requested to indicate whether he has ever received an award of workers' compensation benefits. With authorization from the veteran, the RO should obtain from any workers' compensation authority a copy of any disability determination made and a copy of the medical records upon which the award was based. The veteran is advised that the failure to cooperate in securing these records may have adverse consequences. 4. 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 detail. 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 can not be conducted. 5. 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. 6. 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, 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 on pages 4 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 has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 7. If, and only if, the RO determines that the record establishes the existence of a stressor or stressors in service, 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 an accurate picture of the nature of the veteran's psychiatric status. The examiners should comment explicitly upon whether the events claimed by the appellant as a stressor or stressor and confirmed by the RO are of the quality required to produce PTSD. If so, the examiners should also comment explicitly upon whether there is a link between such a stressor or stressors in service and a current diagnosis of PTSD. 38 C.F.R. § 3.304 (1993). 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. The claims folder must be made available to the examiners prior to the examination. 8. The RO should arrange for a VA orthopedic examination to determine the nature and extent of the veteran's right knee, neck, back and right shoulder disabilities. All indicated studies should be performed and the examiner must review the entire evidence of record, taking into account the veteran's service medical records. In addition, it is requested that the examiner review the record and provide an opinion as to the etiology of the any right knee, neck, back and right shoulder disabilities found to be present, including whether it is more likely than not that any of these disabilities can be reasonably associated with the veteran's active service. The claims folder should be made available to the examiner prior to the examination of the veteran. 9. The RO should review the examination reports and determine whether the findings comply with the requirements of paragraphs (7) and (8) above. If not, the reports should be returned to the examining facility to correct any deficiencies. Thereafter, the RO should readjudicate the veteran's claims as stated on this title page of the decision. 10. The RO should request that the veteran confirm his oral withdrawal of his claim for service connection for a "heart condition" at his July 1991 hearing in writing in accordance with 38 C.F.R. § 20.204(b) (1993). 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 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. By the above actions. the Board does not indicate any factual or legal conclusions as to any outcome warranted in the appeal. RICHARD B. FRANK 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).