BVA9507772 DOCKET NO. 92-08 890 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran's active military service extended from September 1943 to August 1947. There was a second period of service from March 1950 to January 1952 for which he was discharged as undesirable. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1989 rating decisions from the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision the RO denied entitlement to service connection for PTSD on the grounds that his personal file did not show sufficient stressors to warrant service connection for PTSD. The veteran testified at a RO hearing in November 1990. In September 1993, the Board confirmed the RO denial of service connection for PTSD. The veteran appealed that issue to the United States Court of Veterans Appeals (Court). In a December 1994 order, the Court vacated the Board's September 1993 decision and remanded the case for further development in compliance with a joint motion for remand. [citation redacted]. Following the Court's remand, the veteran's representative submitted an informal hearing presentation in March 1995. REMAND The veteran contends that while on board a U.S. ship off the coast of Iwo Jima, the Philippines, and Saipan he was involved in combat incidents involving Kamikaze aircraft, which resulted in nine fatalities and as a result he now suffers from PTSD. Service connection for PTSD requires (1) medical evidence establishing a clear diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). With regard to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 1991). The Court has held that "[w]here it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for 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 [combat] service.'" Zarycki v. Brown, 6 Vet.App. 91, 98 (1993) (emphasis added); 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1994). However, where VA determines from the evidence that the veteran did not engage in combat with the enemy or where the veteran, even if he did engage in combat, is claiming stressors not related to combat, his lay testimony alone is not enough to establish that the stressors actually occurred. Rather, his testimony must be corroborated by "credible supporting evidence" and must not be contradicted by service records. 38 C.F.R. § 3.304(f) (1994); Doran v. Brown, 6 Vet.App. 283, 289 (1994); Zarycki, 6 Vet.App. at 98. The evidence in this case does not show that the veteran had a combat military occupational speciality (MOS) or that he received awards or decorations appropriate to his branch of service denoting participation in combat with the enemy. It may be possible that a veteran who did not have a combat MOS and did not receive combat awards or decorations nevertheless "engaged in combat with the enemy." However, unless other service department evidence can be developed to show such engagement, the veteran must provide evidence to corroborate his testimony that the stressor he claims to have experienced in service actually did occur . 38 C.F.R. § 3.304(f) (1994); Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1991); Zarycki, 6 Vet.App. at 92, citing Manual M21-1, Part VI, para. 7.46(e) ("Other supportive evidence [of participation in a stressful episode] includes, but is not limited to, plane crash, ship sinking, explosion, rape or assault, duty on a burn ward or in graves registration unit."). In attempting to obtain this evidence, the RO should inform the veteran that his own cooperation is essential to this task. The Court has noted that in cases such as this one, "[t]he factual data required, i.e., names, dates and places, are straightforward facts and do not place an impossible and onerous task on [the veteran]. The duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet.App. at 193. If upon remand the RO is unsuccessful in developing evidence to show that the veteran engaged in combat with the enemy, the RO must inform the veteran that he is required to submit "other credible supporting evidence," such as the statements of fellow service members who witnessed the stressful events that the veteran alleges he experienced in service. 38 C.F.R. § 3.304(f) (1994); Doran, 6 Vet.App. at 289. If sufficient evidence is developed so that the RO finds as fact that the alleged stressor actually occurred, the next step in adjudicating the claim is to determine whether the stressful event was sufficiently grave or severe so as to cause PTSD. The Court has held that this determination is a medical matter, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. West v. Brown, 7 Vet.App. 70, 78-79 (1994). In addition, the Court noted in a recent case that "[a]lthough the [Diagnostic and Statistical Manual of Mental Disorders (3rd. ed. Rev.)] notes that the most common trauma or stressor which causes PTSD is 'a serious threat to one's life or physical integrity,' it also lists several other traumas not involving a life-threatening stressor to the afflicted individual which would support a PTSD diagnosis." Duran v. Brown, No. 93-388, slip op at 11 (U.S. Vet.App. Dec. 13, 1994). Consequently, the Court held that, while the documentation of a "life-threatening" stressor certainly supports a PTSD diagnosis, such a stressor is not a required element for a PTSD diagnosis. Duran, slip op. at 11. In light of the wide diversity of clinical diagnoses and opinions concerning the veteran's psychiatric condition, the Board finds that an updated VA psychiatric examination will facilitate reaching an equitable decision in this case. The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining evidence from any source, and obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes obtaining available evidence to support the claim. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In view of the foregoing, the Board finds further development is in order to assist the veteran in the development of his claim. Therefore, the case is REMANDED to the RO for the following action: 1. The veteran should be requested to furnish the names of all health care providers who have treated him for his psychiatric disorder(s) since January 1992. After having obtained the appropriate releases, the RO should obtain copies of all private medical records, not already on file, pertaining to the veteran. The RO should also obtain copies of all VA outpatient and hospital records, not already on file, concerning treatment of this veteran. If any records are not available, that fact and the reason should be annotated in the claims folder. 2. 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 he experienced during service, such as dates, places, detailed descriptions of events, and any other identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment or any other identifying detail. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful events he claims to have experienced, and he must be asked to be as specific as possible because without such details an adequate search for verifying information cannot be conducted. He should also be advised to submit any verifying information that he can regarding the stressors he claims to have experienced in service, such as statements of fellow service members who also were also aboard the USS CAPE JOHNSON or who participated in the fighting at Iwo Jima with him. He is further advised that failure to respond may result in adverse action. 3. The RO should contact the service department and ask them to conduct a special search for additional service personnel records pertaining to this veteran. Any additional records should be associated with the claims folder. 4. Regardless of the veteran's response, 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 United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield, VA 22150- 3197. See DVB Circular 21-86-10, particularly, paragraph 4(d). This organization should be requested to provide any information which might corroborate the veteran's alleged stressors. This should include obtaining information pertaining to the activities of the USS CAPE JOHNSON in 1945 when it was on the way to Iwo Jima including information perhaps recorded in the Deck Logs and/or Ship Histories regarding enemy action and in the Muster Rolls regarding the assignment of the veteran to and from the ship and stations. The ESG should also check if there is any other information in the veteran's personnel records that might corroborate his claimed stressors. 5. Following the above, the RO must make a specific determination, based upon the complete record, as to whether the veteran "engaged in combat with the enemy." If so, the RO should accept the veteran's lay testimony -- in the absence of evidence to the contrary and as long as it is "satisfactory" (i.e., credible) and consistent with the circumstances of service -- as conclusive evidence of the occurrence of the stressor. (Whether the stressor was sufficiently grave or severe to cause PTSD is another question which must be resolved later). If the RO determines that the evidence does not show that the veteran "engaged in combat with the enemy," the RO should consider all credible supporting evidence developed to show that the veteran did experience the alleged stressors and determine whether the evidence is sufficient to establish the occurrence of the stressor. 6. Subsequently, the RO should schedule the veteran for a comprehensive VA psychiatric examination to be conducted by a panel of two VA psychiatrists who have not previously examined him to determine the exact nature of any psychiatric disorder currently present. Each psychiatrist should conduct a separate examination with consideration of the criteria for PTSD. The entire claims folder, a copy of this remand and a copy of the December 1994 Court order and joint remand must be made available to and reviewed by the examiners prior to the examination. According to this order, the examiners are required to review the entire VA claims file prior to the examination. If there are different psychiatric disorders than PTSD, the psychiatrists should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. The examiners must express opinions as to the etiological origins of any psychoses or neuroses found and discuss the relationship between any such disorders and the psychiatric diagnoses appearing in the record. If an examiner is of the opinion that PTSD is present the five specific findings required under DSM-III-R pp. 247-251 must be made to evaluate such diagnosis. The diagnosis must be provided in the "multi-axial system" in accordance with DSM-III-R. If the diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor(s) found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record and found sufficient to produce PTSD by the examiners. The report of examination should include complete rationale for all opinions expressed. All necessary special studies or tests including psychological testing and evaluation such as the MMPI and the Mississippi Scale for Combat-Related Post-Traumatic Stress Disorder are to be accomplished. The results of the testing must be reviewed by the examiners prior to the completion of their reports. 7. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full and in accordance with the December 1994 Court Order and Joint Remand. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 8. After the foregoing, the RO should again formally adjudicate the issue of entitlement to service connection for PTSD. If the decision remains unfavorable following completion of these actions, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. JAN DONSBACH 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).