BVA9508283 DOCKET NO. 92-15 958 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. 2. Entitlement to service connection for generalized arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert P. Regan, Counsel INTRODUCTION The appellant served on active duty from November 1940 to September 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal of an August 1991 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied service connection for several disabilities, including those listed on the title page which are now in appellate status. The veteran's hearing scheduled for September 1992 was canceled at his request. REMAND Initially, the Board has found that the appellant's claim of entitlement to service connection for post-traumatic stress disorder (PTSD) is well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991). The determination is based in part on the service administrative records and VA outpatient clinical records showing treatment for PTSD. Zarycki v. Brown, 6 Vet.App. 91 (1993). Once it has been determined that a claim is well grounded, VA has a statutory duty to assist the appellant in the development of evidence pertinent to his claim. These issues were previously before the Board in July 1994, at which time the case was remanded to the RO for additional development of the evidence. Pursuant to prior remand, the RO in August 1994 requested medical records from the VA facility in Brooklyn, New York; however, no response was received therefrom. In October 1994, while the appellant's claim was pending before the Board, he submitted through his representative correspondence in which he listed three private medical providers where he claims he received treatment apparently since 1946. He again reported receipt of treatment at the VA Hospital, "Fort Hamilton", Brooklyn, New York. The RO has not yet obtained or reviewed this evidence. A VA psychiatric evaluation for compensation purposes was conducted in November 1991. At that time, the appellant reported as the stressor causing his claimed PTSD an incident in which his vessel was sunk by enemy submarine and he was on a raft prior to rescue by other ships. The diagnosis was generalized anxiety state, mild. Medical records from a VA mental health clinic, dated in 1992, reflect that the appellant was receiving treatment for PTSD. In view of the diversity of medical diagnoses relative to his current psychiatric status, the Board is of the opinion that additional development is warranted to reconcile this matter. See Cousino v. Derwinski, 1 Vet.App. 536 (1991). The United States Court of Veterans Appeals (Court), in the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), set forth the frame work for establishing the presence of a recognizable stressor, which is the essential prerequisite to support a diagnosis of PTSD. The Court analysis divides into two major components: The first component involves 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 "engaged in combat with the enemy." Whether or not a veteran "engaged in combat with the enemy" must be the determined through recognized military citations or other service department evidence. In this regard, the service administrative records reflect that the appellant's vessel, the U.S.S. Borie, was sunk by an enemy submarine in November 1943. The Board is satisfied that this demonstrates that the appellant was engaged "in combat with the enemy" with regard to this stressor The next step requires that the appellant's lay testimony regarding the claimed stressor(s) must be accepted as conclusive as to their actual occurrence and no further development or corroborated evidence will be required, provided that the appellant's testimony is found to be "satisfactory," e.g., credible, and "consistent with the circumstances, conditions, or hardships of such service." Zarycki, 6 Vet.App. at 98. In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated on the analysis in the Zarycki case. The Court held that the sufficiency of a stressor is a medical determination, therefore, adjudicators may not render a determination on this point in the absence of independent medical evidence. The Court also held 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 the claim of 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, should the case 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 adjudicator 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 the current psychiatric symptoms. In other words, if the adjudicators determine that the existence of an alleged stressor or stressor in service is not established by the record, a medical examination to determine whether PTSD due to service is present would be pointless. In light of the foregoing, and the VA's duty to assist the appellant in the development of evidence pertinent to his claim pursuant to 38 U.S.C.A. § 5107 (West 1991), the case is REMANDED for the following action: 1. The RO should furnish the appellant the appropriate release of information forms in order to obtain copies of all private and VA medical records pertaining to treatment of his psychiatric disorder and arthritis covering the period from 1946 to the present, to include those medical care providers listed by the appellant in correspondence received in October 1994. 2. The RO should again request that the VA medical facility and the "Fort Hamilton" facility in Brooklyn, New York, furnish copies of all medical records pertaining to treatment of the appellant at those facilities for inclusion in the claims folder. The status of the search for those records, either achieving success or to no avail, should be documented for the record by the RO. The RO should also obtain any additional medical records from the VA outpatient facility in Riviera Beach, Florida, covering the period from September 1992 to the present. 3. Thereafter, 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 in the discussion above. 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 stressor or stressors, the RO must specify what stressor or stressors in service it has determined are now established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. The Board again notes that the claimed stressor regarding the sinking of his ship by the enemy has been verified by the military records. 4 The RO should then arrange for the appellant to be accorded an examination by a board of two VA psychiatrists and a psychologist in order to determine the diagnosis of all psychiatric disorders that may be present. The RO must specify to the examiners the stressor(s), i.e., the sinking of the appellant's ship, that has been established by the record. 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 PTSD have been satisfied. The examination report should reflect a review of pertinent material in the claims folder. The examiners should integrate the previous psychiatric findings and diagnoses with current findings to obtain a true picture of the nature of the appellant's psychiatric status. If the diagnosis of PTSD is deemed appropriate, the examiners should comment upon any link between the current symptomatology and the in-service stressor(s). If a psychiatric disorder, other than PTSD is diagnosed, it is requested that the examiners render an opinion as to when the psychiatric disorder was initially clinically manifested and if not in service, to comment on the clinical significance of the psychiatric symptoms and diagnosis of a personality disorder which at the time of the appellant's separation medical examination was recorded as "aggravated" by service. Thereafter, the case should be reviewed by the RO. If the benefits sought on appeal are not granted, the appellant and his representative should be furnished a supplemental statement of the case and given an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until otherwise notified. J.F. GOUGH 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).