BVA9507226 DOCKET NO. 93- 11 602 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from September 1950 to August 1952. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a December 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 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 an October 1992 VA examination which indicated that "while [the veteran] does not suffer from the full spectrum of [PTSD] symptoms, his anxiety neurosis is rooted in his terrifying combat experiences." The final diagnosis revealed anxiety neurosis, chronic and severe, with a history of panic attacks rooted in the veteran's combat experiences. Further, VA outpatient treatment records from 1992 also indicate that the veteran may suffer from 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 it has been recently indicated that the veteran may suffer from 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 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), aff'd on reconsideration, 1 Vet.App. 406 (1991)); Wilson v. Derwinski, 2 Vet.App. 614 (1992). In Zarycki, the United States Court of Veteran's Appeals (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's 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's 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." 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 veteran'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, 6 Vet.App. 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 veteran's service administrative records now on file do not show that he was awarded the Purple Heart Medal, Combat Infantryman Badge or similar combat citation. The undersigned notes that the veteran has claimed that he was exposed to combat during his service in Korea, including having his artillery unit overrun by the enemy and being in direct combat with the enemy for over eight months. The administrative records indicate that the veteran was awarded the Korean Service Medal and the U.N. Service Medal. However, the receipt of such service medals does not, by itself, demonstrate that the veteran was directly involved in a combat situation. As the Court has noted, the mere presence in a combat zone is stressful in some degree to all individuals, and some corroboration of the events described is necessary to show that he was engaged in combat with the enemy. Wood, 1 Vet.App. 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, 6 Vet.App. 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 above-cited, pertinent case law. With regard to the second component under Zarycki, while post service medical evidence of record has indicated symptoms of PTSD, no diagnosis of PTSD has been made by any medical professional. Further, the current record does not demonstrate that any "symptoms" of PTSD have been based upon the existence of "stressors" in service, confirmed in the manner set forth in Zarycki. As stated in Wilson, 2 Vet.App. at 618 : 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 B[oard] 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 case law, noted above, is highly instructive as to the standards articulated by the Court. See Wood, 1 Vet.App. at 192-93. As noted above, 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. See Zarycki, 6 Vet.App. at 98-99. In West v. Brown, 7 Vet.App. 70 (1994), 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 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. Id. at 77-78. Upon reviewing the above-cited case law (specifically, Zarycki and West), it appears that in approaching a claim of service connection for PTSD, the question of the actual 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 whether or not the remaining elements required to support the diagnosis of PTSD have been met. In such a referral, the adjudicators should specify to the examiners 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 veteran'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. The 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) (1994). 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). In a statement received by the RO in December 1992, the veteran refers to specific service and VA medical records, dating from 1952-53, which may support his claim, which have not been associated with the claims file. 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 nervous symptoms immediately after his active service. 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 obtain copies of the records so identified, including any report of VA outpatient treatment from the Lubbock VA facility dating from September or October 1952. 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 PTSD claim. After securing any necessary authorization for release of information 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 RO should obtain from the Social Security Administration a copy of any disability determination it has made relative to the veteran and a copy of the medical records relied upon concerning any such determination. 38 U.S.C.A. § 5106 (West 1991). 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 cannot 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 U. S. 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 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 2 to 6. In any event, the RO must specifically render a finding as to whether the veteran "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 PTSD 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 veteran 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 (1994). 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, should be performed. The claims folder must be made available to the examiners prior to the examination. 8. The RO should review the examination report and determine whether the findings comply with the requirements of paragraphs (7) above. If not, the reports should be returned to the examining facility to correct any deficiencies. Thereafter, the RO should readjudicate the veteran's claim as stated on the title page of this decision. 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. 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).