Citation Nr: 0003834 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 94-48 272 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for claimed post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran served on active duty from February 1961 to April 1964. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a June 1994 rating decision of the RO. In November 1996, the Board remanded the case for additional development. In July 1998, the Board denied the veteran's claim of service connection for PTSD. The veteran appealed 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 a September 1999 order, the Court granted a Joint Motion for Remand. The Board's decision was vacated, and the matter was remanded for additional proceedings. FINDING OF FACT The veteran's claim of service connection for PTSD is plausible. CONCLUSION OF LAW The veteran has submitted evidence of a well-grounded claim of service connection for PTSD. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The Court has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The regulations concerning the adjudication of claims involving entitlement to service connection for PTSD have changed. In June 1999, revised regulations concerning PTSD were published in the Federal Register which reflected the decision of the Court in Cohen v. Brown, 10 Vet. App. 128 (1997). The changes to 38 C.F.R. § 3.304(f) were made effective the date of the Cohen decision. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); 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. 64 Fed. Reg. 32807-32808 (1999) (to be codified at 38 C.F.R. § 3.304(f)); Cohen v. Brown, 10 Vet. App. 128 (1997). To establish a well-grounded claim of service connection for PTSD, there must be medical evidence showing a diagnosis of PTSD, lay evidence of a stressor in service (presumed credible for purposes of well-groundedness), and medical evidence of a nexus between the diagnosis and stressor. See Cohen v. Brown, 10 Vet. App. at 137. Here, the medical evidence includes diagnoses of PTSD attributable to the veteran's alleged Vietnam service. Thus, the Board finds the claim of service connection for PTSD to be well grounded. 38 U.S.C.A. § 5107. ORDER As the claim of service connection for PTSD is well grounded, the appeal to this extent is allowed, subject to further action, as discussed hereinbelow. REMAND As noted in the Joint Motion for Remand, the Board's November 1996 remand instructed the RO to conduct additional development. Specifically, although not noted in the joint motion, the RO was to attempt to obtain evidence corroborating the veteran's alleged stressors. However, despite the RO's attempts, there was no credible evidence presented support the veteran's assertions. See Cohen v. Brown, 10 Vet. App. at 137. The Board, however, also instructed the RO to arrange for a VA examination to determine the nature and etiology of any current psychiatric disorder. The examiner was to determine whether the veteran was suffering from PTSD due to any verified stressor-of which, of course, there were none. As none of the veteran's alleged stressors were corroborated, the RO did not schedule a VA examination. It was determined in the Joint Motion that the case had to be remanded for compliance with the Board's prior remand request that an examination be scheduled. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board was instructed to arrange for a VA examiner to determine whether the veteran has PTSD due to verified stressors, of which there were none. Subsequent to the Board's July 1998 decision, additional evidence was associated with the claims folder, although some of the evidence was received by the RO prior to the Board's decision. Specifically, a private physician, Kenneth E. Higgins, M.D., stated that he had treated the veteran since 1964. He opined that, "in looking back and knowing of his tour in Vietnam, [his problems over the years were] certainly symptoms of P.T.S.D." The RO should contact Dr. Higgins and obtain his treatment records concerning the veteran. Dr. Higgins should also be asked what was meant by his statement "knowing of his tour in Vietnam." Also, additional letters were received from Martha's Vineyard Community Services. As in earlier letters, it was reported that the veteran had PTSD "from his Vietnam War experiences." The RO should contact the appropriate mental health care providers at that facility and inquire of the specific "Vietnam War experiences" to which they are referring. In light of the foregoing, the Board is REMANDING this case for the following actions: 1. The RO should take appropriate action once again to contact the veteran in order to request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for PTSD since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. a. The RO should specifically contact Kenneth E. Higgins, M.D., to obtain his records of treatment of the veteran. Dr. Higgins should be asked what was meant by his statement "knowing of his tour in Vietnam." Specifically, Dr. Higgins should be asked whether he has independent knowledge of the veteran having served in Vietnam. b. The RO should specifically contact Martha's Vineyard Community Services to obtain records of treatment of the veteran. The veteran's treating mental health care providers should be asked to specify the "Vietnam War experiences" on which the diagnosis of PTSD was based. 2. The RO should take the appropriate steps to contact the veteran in order to obtain information concerning his alleged stressful events or service stressors which have been identified in connection with his claimed PTSD. This should include dates, places, unit assignments and other circumstances surrounding these events. If received, the evidence should be associated with the claims folder. 3. The RO should take the appropriate steps to contact the United States Armed Services Center for Research of Unit Records (formerly ESG), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150- 3197, and verify all claimed stressors of record. This should include taking all indicated action to confirm his reported service in Vietnam between January 1962 and May 1962. 4. The RO should schedule the veteran for a comprehensive VA psychiatric examination in order to determine the nature and likely etiology of any current psychopathology. All indicated testing should be conducted. The claims folder must be made available to the examiner prior to the examination. Based on the review of the case, it is requested that the examiner determine whether the veteran is suffering from PTSD and, if so, whether any verified stressor was of sufficient severity in order to support such a diagnosis. The examiner should also reconcile the findings with previous VA and private medical opinions. 5. After undertaking any additional development deemed appropriate, the RO should review the issue on appeal. Due consideration should be given to all pertinent laws, regulations, and Court decisions. If the benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals