BVA9505011 DOCKET NO. 93-15 994 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel REMAND Active service from April 1967 to November 1969 has been documented. The veteran served in Vietnam from August 1967 to November 1969. His principal duty assignment appears to have been as an Army engineer crane shovel operator. No information regarding the activities of his units at the time is of record. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied service connection for post-traumatic stress disorder. The evidence of record discloses varying psychiatric diagnoses, including post-traumatic stress disorder. The veteran's principal treating psychiatrist, George W. Luedke, M.D., stated in July 1992, that he had been treating the veteran on an outpatient basis since 1987 for post-traumatic stress disorder and related depressive symptoms. Dr. Luedke referred to the veteran having experienced heavy combat in Vietnam, but critical elements of the diagnosis of post-traumatic stress disorder, most fundamentally those concerning the existence of a stressor or stressors, appear to be based wholly upon statements provided to Dr. Luedke by the veteran. The question of whether he 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) affirmed on reconsideration, 1 Vet.App 406 (1991); Wilson v. Derwinski, 2 Vet.App. 614 (1992). When accorded a psychiatric examination by VA in September 1992, the veteran described several stressful incidents that he experienced in Vietnam. However, he denied flashbacks and could not recall any current events to which he was exposed that greatly upset him because of some resemblance to traumatic events in Vietnam. He did not appear to the examiner to meet the minimum diagnostic criteria warranting the diagnosis of post- traumatic stress disorder. It was noted that he was seeing Dr. Luedke about every three months. He added that he would be starting individual psychotherapy as well as marital therapy in the near future. The diagnosis was major depression, single episode, in remission. No attempt has been made by the RO to corroborate the veteran's reported stressors. Clearly, action in this area is warranted under the duty to assist. 38 U.S.C.A. § 5107(a) (West 1991). Further, the United States Court of Veterans Appeals (Court) has articulated a number of additional considerations that must be addressed since the case was last reviewed by the RO. The Board notes that the record as it now stands, reflects that the veteran's accounts of alleged stressors are vague and inconsistent and raise significant questions as to credibility that cannot be ignored and are likewise tied to development of the factual record. In the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set forth the frame work for establishing the presence of a recognizable stressor, which is the essential prerequisite to support the diagnosis of post-traumatic stress disorder. The Court analysis divides into two major components. The first component involves the evidence required to demonstrate the existence of an alleged stressful event; while the second involves a determination as to whether the stressful event is of the quality required to support the diagnosis of post-traumatic stress disorder. 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 (1992), and the applicable VA 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 post-traumatic stress disorder will vary depending on whether or not the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet.App. 604 (1993). Whether 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), the 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," i.e., credible, and "consistent with the circumstances, conditions or hardships of such service." Zarycki at 98. In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated on the analysis in Zarycki. In Zarycki, the Court held that in addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event or events was or were sufficient to give rise to post-traumatic stress disorder. Id. at 98-99. In West the Court held that the sufficiency of a stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. In light of the foregoing, further development of facts pertinent to the veteran's claim is warranted and the case is REMANDED to the RO for the following actions: 1. The RO should request from the veteran a comprehensive statement containing as much detail as possible regarding the stressor or stressors to which he alleges he was exposed to in service. The veteran should be asked to provide specific details of the claimed stressful event or events during service, such as dates, places, detailed descriptions of events and identifying information concerning any other individuals involving 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 on the stressful event or events and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 2. 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 United States Army and Joint Services Environmental Support Group, 7798 Cissna Road, Springfield, Virginia 22159. They should be requested to provide any information which might corroborate the veteran's alleged stressor or stressors. This should include the obtaining of information pertaining to the activities of the veteran's units, the 73rd Company, 84th Engineer Battalion (USARPAC) between August 1967 and May 1968 and the 73rd Engineer Company (C)(S)(USARPAC) between May 1968 and November 1969. 3. Following the above, the RO must make a specific determination, based upon the 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 any event, 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 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. 4. If the RO determines that the record establishes the existence of a stressor or stressors, then the RO should arrange for the veteran to be accorded an examination by two VA psychiatrists, if available, who have not previously examined him to determine the diagnosis of all psychiatric disorders that are present. The RO should 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 the veteran was exposed to a stressor in service. The examination report should reflect a review of pertinent material in the claims folder. If the diagnosis of post-traumatic stress disorder is deemed appropriate, the examiners should comment upon the link between the current symptomatology and one or all of the in-service stressors found to be established by the RO. The report of examination should include the rationale for all opinions expressed. All necessary special studies or tests, to include psychological testing and evaluation, such as the Mississippi Scale for Combat-Related Post-Traumatic Stress Disorders, should be accomplished. The claims folder must be made available prior to the examiners prior to the examination. 5. The RO should then review the record and ensure that all of the above actions have been completed. When the RO is satisfied that the record is complete and the psychiatric examination is adequate, the claim should be readjudicated. 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 the applicable time period in which to respond. 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. The Board does not intimate any factual or legal conclusion as to any final outcome warranted in this appeal. CHARLES E. HOGEBOOM 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).