BVA9508400 DOCKET NO. 92-15 465 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of facial burns. 2. Entitlement to service connection for residuals of an injury to the right knee. 3. Entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert P. Regan, Counsel INTRODUCTION The appellant served on active duty from December 1968 to September 1970, including a tour of duty in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals ( Board) on appeal of a November 1991 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina. In October 1977, the Board denied entitlement to service connection for an acquired psychiatric disorder. A review of the November 1991 rating decision and the statement of the case and supplemental statements of the case, reflect that the RO denied entitlement to service connection for PTSD based upon a de novo review of the record. The Board interprets this procedural aspect of the appellant's claim as indicating that the RO has determined that the evidence submitted since the October 1977 Board decision is new and material; thus, the appellant's claim has been reopened. The appellant, during his hearing at the RO in May 1992, stated that he wished to withdraw the issue of entitlement to service connection for a personality disorder. Pursuant to his request, memorialized in the written hearing transcript of record, this issue is no longer in appellate status. 38 C.F.R.§ 20.204 (1994). REMAND This case was previously remanded by the Board in February 1993 for additional development of the evidence. The Board requested that the RO contact the appellant in order to obtain definitive information regarding the claimed stressors and thereafter take the appropriate action to verify those stressors. The need for a VA psychiatric evaluation was suggested and the Board specifically requested that a medical examination be performed in order to determine whether there were any residuals of the facial burns. The RO was also requested to obtain the appellant's military administrative records. In this regard, the only pertinent administrative records received pertained to the appellants unit assignments from July to September 1970. No information was received regarding the dates, unit assignments or any operations in which the appellant may have been involved during his tour of duty in the Republic of Vietnam. In response to a request by the RO for specific information regarding the stressors, the appellant, in correspondence dated in April 1993, made reference to a mortar round which destroyed a bakery, a motor vehicle and also wounded Marines. The appellant listed the names of several Marines, but did not indicate whether these individuals were injured in the mortar attack. He did not indicate when this attack took place. The appellant stated that he had been assigned to the 3rd Marine Division in June 1969, and was stationed in and around Quang Tri. In October 1994, he indicated that he was involved in numerous combat missions while guarding supply vehicles going to Quang Tri or past Quang Tri City while stationed in Vietnam, from June 1969 to August 1970. In February 1994, the Marine Corps Historical Center reponded that they were precluded from conducting a search of command chronologies, except for a specific month or operation; however, it was indicated that monthly unit diaries could be requested from the Records Branch in Quantico, Virginia. The record reflects that a VA examination was rescheduled to be conducted at the VA medical facility in Augusta, Georgia, where the appellant was an inpatient. Of record is an addendum to a psychiatric compensation and pension evaluation, dated on November 9, 1993, in which the VA psychiatrist indicated that the claims file arrived and was reviewed and it basically substantiated the diagnosis which was made on November 3, 1993. The examiner reported the appellant's complaints of PTSD were subjective and the examiner would not consider PTSD to be a valid diagnosis unless the history and stessors in Vietnam were verified. The VA psychiatric evaluation, apparently conducted on November 3, 1993, was referenced by the RO in an October 1994 RO rating decision and the subsequent supplemental statement of the case. However, a review of the claims folder reflects that the psychiatric examination report is not on file. Additionally, no reference was made to the examination which was requested by the Board in order to determine if there was any residual disability resulting from the in-service facial burns Correspondence received from the appellant in June 1991 and the clinical history recorded during an October 1991 VA psychiatric evaluation indicate that the appellant's claim for PTSD is in part based upon the stressor resulting from the gasoline burns he sustained to his face while on active duty. This burn incident has been confirmed by the service medical record entry dated July 4, 1969. It is noted that the appellant in his substantive appeal, dated in July 1992, indicated that he had not filed a claim for benefits for scars in the facial area. Of record is a notice of award, dated in April 1993, from the Social Security Administration (SSA) showing that the appellant had been awarded Supplemental Security Income (SSI). His representative indicated in May 1993 that the SSI award was based on his PTSD. The Board is of the opinion that the decision awarding SSI benefits and the evidence on which that decision was based is pertinent to the appellant's claim. See Murinscak v. Derwinski, 2 Vet.App. 363 (1992). As previously indicated, the appellant has not furnished specific information regarding all the claimed stressors, to include the reported mortar attack while stationed in the Republic of Vietnam. In the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the United States Court of Veterans Appeals (Court) set forth the framework for establishing the presence of a recognizable stressor, which is an 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's analysis, under 38 U.S.C.A. § 1154(b) West (1991), 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 determined through recognized military citations or other service department evidence. In other words, the claimant'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 appellant's lay testimony regarding the claimed stressors must be accepted as conclusive as to their actual occurrence and no further development of corroborative evidence will be required, provided the appellant's statements are found to be satisfactory and credible, or consistent with the circumstances, conditions or hardships of such service. In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated on the analysis in Zarycki, holding 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. 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, the case should be referred for a medical examination to determine the sufficiency of the stressor and 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 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 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 examiner renders 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. 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 actions: 1. The RO should inform the appellant that the information in his correspondence in 1993 and 1994 regarding the claimed stressors was too vague. The RO should request him to furnish more specific information, including the month and year of the mortar attack and the regiment, battalion and company to which he was assigned (service medical records indicate the 3rd Eng. Bn.). He should be further requested to explain which of the fellow Marines who he reported in the April 1993 correspondence were individuals who simply served with him or whether any of those named were casualties in the mortar attack. Likewise, with regard to any other claimed stressor(s), the appellant should be requested to furnish the month and year and whether the stressor(s) occurred in any operation and the name of such operation should be identified. The appellant should be furnished a copy of the February 9, 1994 response from the Department of the Navy, Headquarters United States Marine Corps. 2. The RO should obtain from the SSA a copy of the decision awarding SSI benefits in 1993 and the supporting medical evidence on which that decision was predicated. 3. The RO should inform the National Personnel Records Center in St. Louis, Missouri that the copies of the military administrative records furnished by them are incomplete. No documents were furnished regarding the appellant's tour of duty in Vietnam, to include verification of the dates he served in Vietnam, the unit(s) to which he was assigned (3rd Eng. Bn.), and operations, awards etc. They should be requested to conduct a search for these records. 4. Thereafter, followinf receipt of sufficient information, the RO should request the unit diaries from the Records Branch, Code MMSB-11, Headquarters, U.S. Marine Corps, 2008 Elliot Road, Suite 202, Quantico, Virginia 22134-0001 and the command chronologies from the Archives Section of the Marine Corps Historical Center, Department of the Navy, Headquarters, U.S. Marine Corps, to verify the claimed stressors (see correspondence dated February 9, 1994). 5. The RO should obtain any additional VA treatment records as reported by the appellant, to include any records from the VA medical facility in Columbia, South Carolina, from 1992 up to the present, and at the facility in Augusta, Georgia, subsequent to February 1993. 6. Following the above, 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, cited 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 further notes that the claimed stressor regarding the gasoline burns has been verified by the service medical records. 7. The RO should obtain the November 3, 1993, VA psychiatric evaluation report and incorporate it with the adjudications claims folder. 8. Thereafter, the RO should arrange for the appellant to be accorded a VA psychiatric examination in order to determine the diagnoses of all psychiatric disorders present. The RO must specify for the examiner the stressor or stressors that it has determined are established by the record and the examiner 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 the pertinent material in the claims folder. The examiner 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 examiner should comment upon the link between the current symptomatology and one or more of the in-service stressor(s) found to be established by the RO. 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 accomplished. If the diagnosis includes psychatric disorders, other than PTSD or a personality disorder, it is requested that the examiner, in conjunction with a review of the claims folder render an opinion as to when such psychiatric disorder was initially clinically manifested, and if not during the appellant's period of active duty, the clinical significance of the in-service psychiatric findings. 9. A VA examination should be conducted in order to determine the nature and severity of the residuals of the facial burns which the appellant sustained in service. All testing deemed necessary should be performed. The claims folder should be made available to the examiner in conjunction with the examination. 10. The RO should then review the record and ensure that all the above actions have been completed. When the RO is satisfied that the record is complete and psychiatric and medical examinations are adequate for rating purposes, the claim should be readjudicated. If the benefits sought on appeal are not granted, the appellant and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. 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).