BVA9505381 DOCKET NO. 93-01 720 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for post traumatic stress disorder. REPRESENTATION Appellant represented by: Ed W. Tratner, Attorney WITNESS AT HEARINGS ON APPEAL The veteran INTRODUCTION The veteran served on active duty from March 1974 to January 1976. In January 1988, the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for post traumatic stress disorder (PTSD). This appeal arises from an October 1990 rating decision by the RO which found that the veteran had not presented a new factual basis upon which service connection for PTSD could be established. Subsequently, in May 1992, a hearing officer found that the veteran had submitted new and material evidence sufficient to reopen his claim. The appeal now before the Board of Veterans’ Appeals (Board) stems from the continued denial of service connection. REMAND The veteran contends that service connection is warranted for post traumatic stress disorder. Essentially, it is maintained that a diagnosis of PTSD is supported based upon the veteran’s purported participation in the evacuation of Saigon in the spring of 1975, as well as his alleged participation as a member of the boarding party responsible for the liberation of the United States Merchant ship, SS Mayaguez in May 1975. In this regard, the medical evidence of record reveals that the veteran has been diagnosed with PTSD on numerous occasions. Significantly, however, a diagnosis of PTSD must be based on credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). In this respect, it is notable that the veteran’s personnel records are devoid of any reference to his participation in either the evacuation of Saigon or in the liberation of the Mayaguez. Thus, at this point, the record lends itself to the conclusion that the diagnoses of PTSD were based solely on the veteran’s unsubstantiated military history. Still, the record does reveal unit histories, as well as several articles concerning the evacuation of Saigon and the liberation of the Mayaguez, which may, with further development, provide supporting evidence of an inservice stressor. In this respect, turning first to the claims surrounding the evacuation of Saigon, the veteran contends that between May 4 and May 7, 1975, he participated in the evacuation of United States embassy in Saigon as a member of "OPERATION EAGLE PULL." At that point in time, he was a member of Headquarters and Service Company, 1st Battalion, 4th Marines (hereinafter 1/4 or 1/4 Marines). While the record does not reveal any reference to an OPERATION EAGLE PULL, there is evidence that 1/4 Marines were tasked with amphibious evacuation responsibilities during OPERATION FREQUENT WIND, an operation which evacuated, primarily by helicopter, almost 7,000 people from Saigon. See R. E. Carey and D.A. Quinlan, Frequent Wind: Organization and Assembly 223. Accordingly, while the Board acknowledges that Saigon was under the control of communist forces of North Vietnam by May 1, 1975, see THE WORLD ALMANAC OF THE VIETNAM WAR 345 (J. S. Bowman, gen. ed. 1985), the Board concludes that further development is warranted. Turning next to the assertions concerning the liberation of the Mayaguez, the Board observes that the Command Chronology of 1/4 for the period from May 5 to May 31, 1975, notes that Headquarters and Service Company did provide a "small command group" to the rifle company tasked with boarding and freeing the Mayaguez. Unfortunately, no effort has been made to verify whether the veteran was a member of this "small command group," or if, as is alleged by the veteran, whether he went over the side and boarded the Mayaguez as a member of the tasked rifle company. Accordingly, further development is required. Finally, further development is warranted in light of the veteran’s testimony concerning his witness of the loss of several helicopters during the liberation of the Mayaguez crew. In this regard, the Board observes that while the boarding of the Mayaguez itself was unopposed, during the liberation of the Mayaguez crew 38 servicemen were killed, and another 50 were wounded. Further, out of a helicopter assault force of 22 aircraft, the record reveals that 13 helicopters were damaged. See D. P. Bolger, The Recovery of the SS Mayaguez in AMERICANS AT WAR 57 (1988). One of these aircraft, "Jolly 13," belonged to the boarding force from Company D, 1/4 Marines. Accordingly, the veteran’s location at the time of the loss of 1/4’s aircraft, as well as other aircraft, is pertinent to answering whether the veteran has a verifiable stressor. Accordingly, in order to attempt to verify the veteran’s claimed stressors, this case is REMANDED for the following action: 1. The information provided by the veteran concerning his purported participation in the evacuation of Saigon, as well as in the liberation of the SS Mayaguez and her crew, together with a copy of the veteran's service records, should be sent to the Commandant, Headquarters United States Marine Corps, ATTN: MMRB-16, Quantico, VA 22134-0001, for verification. Upon receipt, the office of the Commandant, Headquarters Marine Corps is requested to report whether elements of Headquarters and Service Company, 1st Battalion, 4th Marines, 3rd Marine Division participated in the evacuation of personnel from the grounds of the United States embassy in Saigon. If Headquarters and Service Company did not participate in the operation at the embassy, the office of the Commandant is requested to provide a report concerning what duties, if any, Headquarters and Service Company, 1/4 Marines performed in the Republic of Vietnam between April 1, and May 7, 1975. The office of the Commandant is next requested to verify through examination of appropriate personnel rosters, etc., whether or not the veteran was a member of either the command group or the rifle company which boarded the SS Mayaguez. At the same time, the office of the Commandant is requested to identify whether any of the helicopters which participated in the assault of either the Mayaguez, or the liberation of the crew from Koh Tang island, were lost or damaged within visual sight of the U.S.S. Okinawa (LPH-3). In particular, the location of "Jolly 13" at the time it was damaged relative to the nautical location of the U.S.S. Okinawa is requested. Finally, the office of the Commandant is requested to determine whether the veteran should have been awarded the Combat Action Ribbon for any verified action. 2. Following the receipt of the Commandant's report, and the completion of any necessary development, the RO should prepare a report detailing the nature of any combat action, or stressful event, that has been verified by the Commandant. If no combat or stressor has been verified, the RO should so state in their report. This report is then to be added to the claims folder. 3. Then, and only then, should the RO schedule the veteran for a VA psychiatric examination by a psychiatrist who has not previously seen or treated him. This examination is to be conducted in accordance with the VA Physician's Guide for Disability valuation Examinations in order to determine the nature and extent of any psychiatric disorder which may be present. All indicated studies, including post-traumatic stress disorders sub scales, are to be performed. The claims file must be provided to and reviewed by the examiner prior to conducting this examination. In determining whether the veteran has PTSD the examiner is hereby notified that only the verified history detailed in the reports provided by the Commandant and/or the RO may be relied upon. If the examiner believes that PTSD is the appropriate diagnosis the examiner must specifically identify which stressor detailed in the Commandant's and/or the RO's report is responsible for that conclusion. All opinions expressed must be accompanied by a complete rationale. 4. Following the completion of the foregoing the RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the VA psychiatric examination report to verify that any diagnosis of PTSD was based on the verified history provided by the Commandant and/or the RO. If the examiner relied upon a history which is not verified, that examination report must be returned as inadequate for rating purposes. In this respect the Board observes that the United States Court of Veterans Appeals has held that a diagnosis of PTSD based on an examination which relies upon an unverified history is inadequate for rating purposes. West v. Brown, 7 Vet.App. 70, 77 (1994). 5. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for PTSD. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be provided. Thereafter, the case should be returned to the Board, if otherwise in order. By this REMAND, the Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until he is otherwise notified. DEREK R. BROWN 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) (1994).