BVA9503759 DOCKET NO. 91-48 771 ) 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 (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1968. This appeal has arisen from a rating decision in March 1990 of the Department of Veterans Affairs (VA) Regional Office (RO) at New York, New York, which denied entitlement to service connection for PTSD. The veteran subsequently moved to the St. Petersburg, Florida, RO jurisdiction. He requested the New York RO to transfer his records to the St. Petersburg RO in September 1991. He submitted his change of address in October 1991. The hearing on this appeal was conducted before a hearing officer at the St. Petersburg RO. The Board of Veterans' Appeals (Board) remanded the case in July 1992 for VA Mental Health Clinic records and a VA psychiatric rating examination. The veteran has raised the issues of entitlement to service connection for cancer of the lymph nodes (Hodgkin's disease), a seizure disorder and a dental disability. These claims are not inextricably intertwined with the current appeal, and they are referred to the RO for appropriate action. We would emphasize, however, that this veteran, as a Vietnam Era veteran who served in the Republic of Vietnam, may be presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6) (1994). If so, Hodgkin's disease would be regarded as subject to presumptive service connection on the basis of that exposure. See 38 C.F.R. § 3.309(e) (1994). REMAND The veteran is claiming that he was exposed to traumatic events during his service in Vietnam which resulted in PTSD. He specifies that he drafted maps for and road shotgun guard on truck convoys in Vietnam, from Long Binh to the Delta and to the Demilitarized Zone (DMZ). He states that he was thrown to the ground from an ammunition dump explosion while he was on guard duty during his first days in Vietnam. He recalls that he helped to load dead bodies onto trucks and there were so many that they had to be tied on top. He describes a mine explosion of a truck in front of his on one convoy and the resultant death of a friend. He recalls that he was on another convoy carrying aircraft fuel when they came under mortar attack, saw a bridge they had to cross blow-up, and were pinned down for about an hour until a helicopter could bring a portable bridge for them to use. He asserts that the RO has not developed his claim by obtaining documentation from the National Archives regarding morning reports. He contends that the Board has not fulfilled its duty to assist him in the development of his claim under the provisions of 38 U.S.C.A. § 5107(a). It is specifically requested that morning reports and his personnel records be associated with the claims folder. He further argues that a copy of an order showing that he was assigned as "shotgun" guard for the 7th Transportation Battalion while serving in Vietnam is proof that he "engaged in combat" within the meaning of 38 U.S.C.A. § 1154(b) (West 1991). He feels, therefore, that his uncorroborated statements of having experienced combat stressors should be sufficient to establish service connection for PTSD. Pertinent service department personnel records on file pursuant to the RO's request, apparently in September 1989 for these records, to specifically include duty assignments, awards and campaigns, were received in October 1989 and show that the veteran served in the Republic of Vietnam, principal duty of general draftsman, in the HHD, 48th Transportation Group, USARPAC, from January 31, 1967, to January 30, 1968. He was involved in the Vietnam Counteroffensive Phase II. He was awarded Vietnam Service Medal and the Vietnam Campaign Medal with device "60." His military occupational specialty (MOS) was construction draftsman. A copy of records was subsequently received indicating that he road "shotgun" guard with the 7th Transportation Battalion on one occasion. The date and place was unspecified. On his substantive appeal received in December 1990, the veteran reported inservice incidents he felt were stressful and resulted in PTSD, as follows: 1. On the first day he was in Vietnam he was assigned guard duty and when an ammo dump was blown-up he was thrown to the ground with the force of the explosion. 2. When he was on a convoy the truck in front of him hit a mine and exploded, killing one guy who used to hang-out with him. This occurred after he had been told that the road had been swept for mines and other trucks had passed safely. 3. When he was in the vicinity of what he thought was named "Black Widow Mountain," there had been a fire fight and he was loading dead bodies onto a truck. There were so many bodies that the truck was filled-up and they had to be tied onto the top of the truck. 4. On another convoy, the truck on which he rode was loaded with "JP4." They were under a mortar attack, a bridge was blown- out, and they were pinned down for about an hour before a helicopter came in with a portable bridge. A report dated in July 1991 was received from the Department of the Army, United States Army and Joint Services Environmental Support Group (ESG) indicating that the information received from the veteran was insufficient for the purpose of conducting meaningful research on his behalf. It was required that he provide ESG with specific combat incidents including the date to within seven days, place and type; and names of friends in the unit killed or wounded in action if applicable. In order to provide research concerning the casualties he referred to, more specific information was required to be provided. It was indicated that such information should include the individual's full name, unit, whether killed or wounded, a brief description of the incident, and the most specific date possible. Using the volume of records normally available, the date spans of no more than seven days were preferred. Morning reports reportedly could be used to verify daily personnel action such as wounded in action, killed in action, missing in action, or transfers and they could be ordered from the National Archives. It was stated that convoys on main U.S. supply roads were subject to mining, sapper, ambush and sniper attacks. A PTSD claim concerning such incidents had to be put in the context of the personal involvement of the veteran. Full names of casualties and unit designations in order to attempt to document this type of incident were needed. Photographs of helicopters, soldiers who apparently were shotgun guards on truck convoys during Vietnam, and articles about truck transportation and dangers of convoys in Vietnam were received from the veteran in support of his claim in December 1992. Neither he nor his unit was personally depicted/described in these documents. A transcript (T.) of a personal hearing of the veteran before a hearing officer at the RO in April 1993 is of record. The veteran testified that his first recollection of Vietnam was getting off the plane onto a bus and then being shot at and told to get on the floor; that during the first night or two he was on guard duty when he witnessed an ammunition depot explosion, which looked like a gigantic ball of fire; that he was in his designated unit because he knew something about drawing; that he never did actual drafting but a Major Lazarro ("or something like that, I forget"), Major Chunko and Captain Wills, the Operations Officer, had him make maps and charts for them in between going out on convoys; that he would make the maps and then go out on the convoys; that he apparently was told to go out on these convoys in May to be shotgun guard; and that he was shotgun guard on trucks carrying jet fuel and body bags. T. at 2. He reported that he had come under fire for about an hour when he was waiting for a bridge to be repaired after it had been blown-up; that he had witnessed a truck in front of him hit a mine and explode; and that his whole tour of duty involved riding shotgun guard on convoys. T. at 3. He expressed that he still "saw" the explosion of the truck in front of him in Vietnam; that he remembered strapping and tying body bags onto trucks; that he had no idea what the dates of his Vietnam experiences were; and that he knew that the men in the truck that hit the mine were in the 48th Transportation Group. T. at 10. He testified that he did not know the date when the bridge was blown-up and that he did not keep any additional copies of orders or assignments but that he did not know if he had anything logged in or if there were any letters left of when it happened or on what convoy it happened. T. at 11. In this case, one of the veteran's principal psychiatric diagnoses is 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 veteran was exposed to a stressor during 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). Without additional, and specific information from the veteran, corroboration of the stressors claimed may not be possible. Thus, a favorable determination in his case may be predicated upon such corroboration. 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 of the Court analysis, under 38 U.S.C.A. § 1154(b) (West 1991), 38 C.F.R. § 3.304 (1994), 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 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 veteran's assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this activity as a fact. The administrative records on file do not show that he was entitled to receive any award or decoration appropriate to his branch of service denoting participation in combat with the enemy. The Board notes further that the Court has indicated that the mere presence in a combat situation or reporting indirect experiences of an individual is not sufficient to show that he engaged in combat with the enemy. Wood. In West v. Brown, 7 Vet.App. 70 (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. This represents a significant departure in the adjudication of PTSD claims. In this case, the veteran underwent VA psychiatric examinations in 1993 before the sufficiency of the stressors claimed had been specifically adjudicated. 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 veteran was exposed to a stressor and what the nature of the stressor or stressors was to which the veteran was exposed. In other words, if the adjudicators determine that the alleged inservice stressor or stressors did not occur, a medical examination to determine whether PTSD due to service is present would be pointless. Likewise, if the examiners diagnose PTSD not based on just the inservice stressor or stressors the adjudicators accept, 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 PTSD claim, the case is REMANDED to the RO for the following actions: 1. The RO should again request from the veteran a comprehensive statement containing as much detail as possible regarding the stressors to which he alleges he was exposed during service. He should be asked to provide specific details of the claimed stressful events 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. He should be 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 because without such details an adequate search for verifying information can not be conducted. He should be further advised that failure to respond may result in adverse action. 2. Next, the RO should request all the Morning Reports (MR's), DA Form 1, and unit records/military orders of the veteran during his stay in the Republic of Vietnam from January 31, 1967, to January 30, 1968. The MR's should be requested from the Director, National Archives and Records Administration (NARA), ATTN: NCPMA-O, 9700 Page Boulevard, St. Louis, Missouri 63132. Especially important periods of time would be the first six months the veteran was in- country. 3. With the additional information obtained, the RO should review the file and prepare a summary of all the claimed stressors. For preparation of the summary, the RO should rely on all relevant statements, testimony and medical histories supplied by the veteran. Some of this information is referred to earlier in this remand. This summary, and all associated documents, should be sent to the ESG, 7798 Cissna Road, Springfield, Virginia 22150. They should be requested to provide any information which might corroborate the veteran's alleged stressors. This should include the obtaining of information pertaining to the activities of the HHD, 48th Transportation Group, USARPAC, from January 31, 1967, to January 30, 1968. It also should include any pertinent information regarding the putative ammunition dump explosion, apparently at Long Binh, within days of the veteran's arrival in-country, and the putative bridge blow-up incident apparently in or around May 1967. The names of the veteran's military superiors he gave on T-2 of the hearing transcript should be utilized to obtain any additional information, if possible. It should be confirmed or rule- out, if possible, whether the veteran's unit was involved in any loading of bodies/body bags on a convoy at or near a reported "Black Widow Mountain" during his stay. 4. Then 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 on pages 6 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. 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 2 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 purpose of determining whether the veteran was exposed to a stressor in service. The examination report should reflect review of pertinent material in the claims folder. The examiners should integrate the previous psychiatric findings and diagnoses of current findings to obtain a true picture of the nature of the veteran's psychiatric status. If the diagnosis of PTSD is deemed appropriate, 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; (3) whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiners. 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, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD's, 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 readjudicated. If the benefits sought on appeal are 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 (CONTINUED ON NEXT PAGE) case should be returned to the Board for further review. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. SAMUEL W. WARNER 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).