Citation Nr: 0006810 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 96-47 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD C. M. Cote, Associate Counsel INTRODUCTION The veteran had active service from July 1969 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1996 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO). The veteran and his wife offered testimony at a video conference before the undersigned Member of the Board sitting at the RO in December 1999. A copy of the transcript is of record. FINDING OF FACT The veteran has reported inservice combat stressors and there is competent medical evidence linking those stressors to a current diagnosis of PTSD. CONCLUSION OF LAW The claim of entitlement to service connection for post traumatic stress disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service personnel records show that he served in Japan from June 1970 to January 1971. He also served in Vietnam from January 1971 to March 1971. Service records indicate that in Vietnam he served with the Headquarters & Service Company, 2d Batallion, 1st Marines and was a motor vehicle operator. The veteran participated in Combat Operations against communist forces in Da Nang, participated in Operation Hoang Dieu and Operation Up Stream. The veteran's service medical records are negative for complaints, treatment or diagnoses relating to a psychiatric disability. His separation examination shows no psychiatric abnormality. VA outpatient treatment records dated from June to November 1995, contain assessments of PTSD. In a November 1995 PTSD stressor interview the veteran indicated that he was a truck driver in Vietnam from January to March 1971, and was sent to drive all night through "hot zones" and was on guard duty. He reported being under constant stress and fearing for his safety. He also indicated that he was involved in firefights in which some marines were wounded. He reported no treatment while in service. During that interview, he reported being laid off from his job in September 1994 and having a nervous breakdown two weeks later. His wife indicated that he began to drink heavily. He reportedly talked to himself about Vietnam and his speech became unintelligible. He was then hospitalized for 4 days, and restrained for a portion of that time. He reported receiving treatment for PTSD from a VA facility since July 1995. The veteran obtained a score of 152 on the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) administered in November 1995. The examiner noted that the score was well above the empirically-established cut-off of 107 for PTSD. Complaints of PTSD symptoms, including flashbacks, nightmares, heightened startle response, emotional dyscontrol, depression, sleep disturbances, substance abuse, trouble holding a job, memory and concentration difficulties, avoidance of situations that reminded him of the military, and alienation from family and friends. The veteran was afforded a VA examination in December 1995. He reported that he was scared and feared for his safety while in service. He also indicated that he was involved in different battles and firefights but was never hurt. He complained of insomnia, sleeping two to three hours. He also complained of flashbacks about Vietnam experiences. He reported that he sometimes awoke afraid that someone was trying to break into his house and that he hid in his closet believing that he was in Vietnam. He indicated that he felt guilt with remorse that he went home early from Vietnam. He complained of feeling depressed, poor concentration, impaired memory, irritability, anger, "looking for trouble", and paranoid ideas. He reported that he attended therapy sessions at a VA outpatient facility but that he received no medication. A history of alcohol dependence, with resulting physical fights, was noted and the veteran reportedly attended AA meetings. At the examination, the diagnosis was chronic PTSD and alcohol dependence. A reference was also made to paranoid schizophrenia. In an October 1996 statement, a VA psychiatrist indicated that he had seen the veteran in August 1995 and found that the veteran had developed PTSD as a result of military trauma that had happened in Vietnam. The PTSD was reportedly verified by a Mississippi scale score of 152, MMPI, and war stress screening. It was noted that the veteran also suffered from a mood disorder and alcoholism. A statement provided by the Navy in September 1998 indicated that based upon information submitted by the veteran, they were unable to confirm specific stress incidents. The veteran was afforded a VA contract psychiatric examination in September 1998. He reported that he was undergoing monthly outpatient treatment and was taking medication for anxiety, sleeping problems, and visual and auditory hallucinations. When asked to describe the stressor or trauma information, he indicated that he had a lot of dreams about Vietnam. He talked about firefights, dead bodies and being scared for his safety. He indicated that a sniper missed his head by 8 inches. He indicated that he was in Da Nang and when he thought of his service he became depressed, nervous, and anxious. Efforts to avoid thought, feelings, and conversations associated with war experiences was noted. He also indicated that loud noises and helicopters would bring back memories of Vietnam. The diagnoses were PTSD (Axis I) with Vietnam War experiences (Axis IV). The veteran was afforded a VA VideoConference before the undersigned in December 1999. He testified that he was first diagnosed with PTSD in 1974 at a VA hospital. He indicated that he was not receiving treatment or medication at the time of the conference but his wife testified that he was being seen monthly on an outpatient basis for psychiatric problems and that he was on medication. The veteran testified that he had recurrent nightmares of soldiers firing at him and that he had similar experiences in Vietnam. The veteran cited to the sniper missing him by eight inches, which he claimed occurred around February 1970. He also testified that the enemy would attack them at night approximately every third day. His wife testified that he appeared to be "mad" in his sleep every day and that he had nightmares daily. She also testified that he isolated himself because he indicated to her that he was trying to protect himself because someone wanted to kill him. The veteran testified that he had been in receipt of Social Security disability since approximately 1997. Laws and Regulations In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). A PTSD claim is well grounded if there is medical evidence of a current disability, lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD. Gaines v. West, 11 Vet. App. 353, 357 (1998). Where there is a clear diagnosis of PTSD, a veteran's assertions of participation in combat are generally accepted as true for purposes of determining whether the claim is well grounded. Falk v. West, 12 Vet. App. 402, 404 (1999). Analysis Based on the facts of this case, the Board holds that the veteran has satisfied his initial burden of submitting a well-grounded PTSD claim because he has submitted medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability. See Caluza, 7 Vet. App. at 506. Specifically, the record contains diagnoses of PTSD. In addition, the record contains the veteran's statements regarding his exposure to significant stressors during his service. Finally, the record contains an October 1996 VA physician statement that relates the veteran's PTSD symptoms to his experiences in service. This medical evidence of a generalized connection between the veteran's PTSD and his military experiences is sufficient to provide the requisite medical evidence of a nexus between service and a current disease that is necessary under Caluza to well ground a PTSD claim. Inasmuch as the Board has held that the claim is well grounded, the Board must ensure that the duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. As will be discussed below, the Board finds that additional development is required prior to a decision on the merits of the veteran's claim. ORDER The claim of entitlement to service connection for PTSD is well grounded. REMAND Because the claim of entitlement to service connection for PTSD is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). At his videoconference hearing in December 1999, the veteran and his spouse testified that he was receiving regular VA psychiatric outpatient treatment. It does not appear that outpatient treatment records subsequent to November 1995, have been obtained. Where confirmation of an inservice stressor is missing in a PTSD claim, the RO will contact the Marine Corps. Denial of a claim solely because of an unconfirmed stressor is improper unless the claim has first been reviewed by the Marine Corps. M21-1, Part III, Para. 5.14 (April 30, 1999). In the instant case the RO has contacted the Marine Corps, but it does not appear that the RO requested more specific information from the veteran following the negative response from the service department. Such a request is mandated under the above mentioned M21-1 provisions. Subsequent to the RO's request for information the veteran has reported additional details regarding stressful incidents. For instance, he reported that he was narrowly missed by sniper fire in February 1970. In written statements, and in his self-reported history to physicians, the veteran has alleged the following in-service stressors: 1) He was subjected to "intense discriminatory acts" while in Okinawa; 2) He was assigned to guard duty and required to drive through "hot zones" in Da Nang; 3) He was required to retrieve a deserter for prosecution in Da Nang; 4) He came under sniper fire in Da Nang; 5) He was subjected to firefights in which marines were wounded in Da Nang. Significantly, there is little supporting evidence that has been presented to corroborate those events. The record, however, does not indicate that the veteran was ever requested to provide the RO with statements from fellow servicemen who might provide corroborating evidence to support the alleged stressors. In order to obtain a definitive answer as to whether or not the veteran has provided sufficient details to permit meaningful research, the Board finds that an additional attempt to verify said stressors is warranted on the facts of this case. Accordingly, this case is REMANDED for the following: 1. The RO should seek to obtain all of the veteran's outpatient psychiatric treatment records from the East Los Angeles and Loma Linda VA facilities. Any records so obtained should be associated with the claims folder. 2. The veteran should be asked to provide supporting evidence of his claimed stressors, to include "buddy" statements, and names of wounded soldiers. He should also be requested to furnish additional information in accordance with the provisions of M21-1, Part III, Para. 5.14. 3. The RO should provide the above-cited list of claimed stressors, together with a copy of the veteran's DD Form 214, pertinent personnel records, and any additional information supplied by the veteran to the Commandant of the Marine Corps. The Marine Corps should be asked to provide any additional information that might corroborate the veteran's alleged stressors. 4. Following the receipt of a response from the Marine Corps, the RO should determine whether any additional evidence received provides supporting evidence for any of the claimed stressor. 5. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for PTSD. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case to the veteran and his representative. A reasonable period of time for a response thereto should be afforded. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals