Citation Nr: 0005015 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-14 108A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable evaluation for low back strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from October 1968 to October 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). In reviewing the procedural development of the appellant's case, the Board notes that his original claim included both issues listed above, and that following the RO's December 1997 rating decision as to both issues he filed a notice of disagreement (NOD) regarding both issues. After a statement of the case (SOC) was issued in June 1998 that addressed both issues, he filed a substantive appeal (SA) on a VA Form 9 in September 1998. While the SA noted in Block 9 of the form that the appellant wanted to appeal all of the issues listed on the SOC, he indicated in Block 10 that he "wished to appeal the decision made for denial of service connection for Post Traumatic Stress Disorder dated May 29, 1998," (the SOC). Because of the appellant's response in Block 9 of his SA, the Board believes that he perfected his claim for a compensable evaluation for his low back strain. Therefore, that claim is properly before the Board for appellate consideration, and it is addressed in the Remand portion of this decision. FINDINGS OF FACT 1. The appellant claims that he was exposed to rocket and mortar attacks while serving in Vietnam during the Vietnam Conflict, that he had a friend killed in a rocket attack, and that he was an eyewitness to an airplane crash while there, which killed many people and left him with memories of bodies hanging out of and lying around the wrecked plane. 2. A December 1994 statement from a VA social worker indicated that the appellant appeared to be experiencing symptoms consistent with PTSD, with the implication that the disorder was related to traumatic events that had occurred in Vietnam. 3. In a December 1995 statement, the VA social worker reported an assessment of PTSD for the appellant. 4. A VA psychologist reported in a May 1996 psychological assessment that the appellant's history indicated that he had suffered from PTSD and now had associated depression. CONCLUSION OF LAW The appellant has submitted a well-grounded claim for service connection for PTSD. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A claimant filing for VA benefits has the duty to submit evidence that must "justify a belief by a fair and impartial individual" that the claim is plausible, and, therefore, well grounded. 38 U.S.C.A. § 5107(a). A claim is not well grounded if the claimant fails to present such evidence. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the claimant must be accepted as true for the purpose of determining if a claim is well grounded, except where such assertions are inherently incredible or beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (1993). For a claim of service connection to be well grounded, there must be competent evidence of current disability, of the incurrence or aggravation of a disease or injury during service, and of a nexus between the inservice injury or disease and the current disability. That is, an injury during service may be verified by competent medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis; and, where an opinion is used to link the current disorder to a cause or symptoms during service, a competent opinion of a medical professional is required. Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime military service. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d). The appellant claims that he has PTSD that is related to traumatic events he experienced while serving in Vietnam during the Vietnam Conflict. He indicated in his May 1998 statement (NOD) that he had been in Vietnam for a few months when he experienced his first rocket and mortar attack on April 1, 1970, which lasted for seven days. He recounted finding out that a friend in another barracks, a serviceman he knew as "Sarge," had been killed in a rocket attack in June or July 1970. He reported having to run one day when he saw an airplane about to crash near him, which killed approximately 30 people, leaving bodies hanging out of the plane and lying around. He stated that he had taken pictures of the crash site immediately afterwards but was never questioned as a witness. His September 1998 SA included a copy of his May 1998 statement, with an added paragraph indicating that he been involved with the 366th Support Group (to which his personnel records show he was attached from March to December 1970), that he had been stationed at Gunfighter Village, approximately one kilometer from Freedom Hill in the Marble Mountains, and that he had received treatment at a military hospital in Georgia upon his return from Vietnam. A December 1994 statement from a VA social worker indicated that the appellant appeared to be experiencing symptoms consistent with PTSD, which the social worker seemed to imply was related to traumatic events in Vietnam. A December 1995 statement from the VA social worker reported an assessment of PTSD. In a May 1996 VA psychological assessment, a VA psychologist reported that the appellant's history indicated that he had suffered from PTSD and now had associated depression. Because the appellant's claimed exposure to rocket and mortar attacks and to dead bodies in the Vietnam Conflict could serve as traumatic events, and because he has been diagnosed with PTSD, ostensibly related to his participation in the Vietnam Conflict, the Board finds that he has satisfied the elements set forth in Caluza v. Brown, 7 Vet. App. 498 (1995) with regards to submitting a well-grounded claim for PTSD. 38 U.S.C.A. § 5107(a). ORDER The appellant has submitted a well-grounded claim for entitlement to service connection for PTSD. REMAND In additional to claiming that he has PTSD that was caused by exposure to traumatic events in Vietnam, the appellant also argues that his service-connected low back strain with residual pain is more severely disabling than currently evaluated. Review of the claims file does not show that the U.S. Armed Services Center for the Research of Unit Records (USASCRUR)) has been requested to verify the stressful events reported by the appellant. The Board notes that the appellant's service personnel records show that he was a warehouseman, that he did not receive any combat awards or decorations, and that he was stationed in Vietnam between March 1970 and December 1970. The question of the existence of an event claimed as a recognizable stressor must be resolved by adjudicatory personnel. Zarycki v. Brown, 6 Vet. App. 91 (1993); West v. Brown, 7 Vet. App. 70 (1994). If the adjudicators conclude that the record establishes the existence of such event, then the case should be referred for a medical examination to determine (1) the sufficiency of the stressor, (2) whether the remaining elements required to support the diagnosis of PTSD have been met, and (3) whether there is a link between a currently diagnosed PTSD and a recognized stressor or stressors in service. 38 C.F.R. § 3.304(f). The adjudicators should specify to the examiner precisely what events claimed as stressors are established by the record, and the medical examiner must be instructed that only those events may be considered in determining whether the appellant was exposed to a stressor for the purposes of service connection. In other words, if the adjudicators determine that the existence of any inservice events claimed as stressors 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 whose existence the adjudicators have accepted, the examination would be inadequate for rating purposes. Because there is competent medical evidence diagnosing the appellant with PTSD related to traumatic events in the Vietnam Conflict, and VA has a duty to assist the appellant in the development of facts pertinent to his claims under the provisions of 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.103(a), the Board believes that additional evidence must be obtained in order to determine if the appellant has PTSD that can be linked to traumatic events to which he claims he was exposed during military service. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that when the Board believes the medical evidence of record is insufficient it may supplement the record by ordering a medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The claims file is devoid of a recent VA examination pertaining to the appellant's low back. Therefore, in order to obtain additional medical evidence and to insure that the appellant receives his procedural due process rights and fair process rights, the Board finds that the claims must be remanded for the following actions: 1. The RO should contact the appellant and request that he provide the names and addresses of any health care providers from whom he has received psychiatric or back treatment since service, and, if possible, specify the appropriate dates of treatment. Particular attention should be paid to identifying the medical records from the Georgia military hospital where the appellant claims to have received treatment after returning from Vietnam. Then, after any necessary authorization is obtained from the appellant, the RO should obtain copies of all treatment records for the appellant from the health care providers identified and associate them with the claims file. 2. The appellant should be advised that he may submit affidavits from others who have knowledge of the alleged stressful events to which he claims he was exposed in Vietnam. 3. After receipt of the information requested above, the RO should forward it to the U.S. Armed Services Center for the Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, Virginia, 22150, along with copies of the appellant's service personnel records (already of record in the claims file) for verification of the incidents which the appellant has reported as stressors. Any information obtained is to be associated with the claims file, and any additional development suggested by the USASCRUR should be undertaken by the RO. 4. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to the specific events claimed as stressors in service. The RO must specifically render a finding as to whether the appellant ". . . engaged in combat with the enemy.". 5. If, and only if, the RO determines that the record establishes the existence of the events claimed as stressors, then it should arrange for the appellant to be examined by a psychiatrist who has not previously examined him to determine the correct diagnosis of his psychiatric disorder. The RO must specify for the examiner the stressor or stressors that it has determined are established by the record, and he must be asked that only those events may be considered for the purpose of determining whether the appellant was exposed to a stressor in service. If a diagnosis of PTSD is appropriate, the examiner should specify which, if any, stressors found to be established by the RO was sufficient to produce PTSD. The report of the examination should include a complete rationale for all opinions expressed. The diagnosis should be in accordance with DSM- IV. The entire claims folder and a copy of this Remand should be made available to and reviewed by the examiner. 6. The RO should schedule the appellant for a VA orthopedic examination to determine the severity of his low back disorder. All indicated studies, including range of motion studies, should be performed, if not contraindicated. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. He should be requested to identify whether there is any functional impairment resulting for the appellant's low back disorder and, if so, the degree of such impairment. The examiner should provide complete rationale for all conclusions reached. 7. The appellant should be advised of the provisions set forth at 38 C.F.R. § 3.655(b) regarding failure to report for scheduled VA examinations. 8. The RO should review the claims folder and ensure that all of the development action has been conducted and completed in full. The Court has held that, if the requested examination does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 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). The Board expresses its appreciation in advance to the RO for its assistance in developing the requested evidence and trusts that this development will be attended to in an expeditious manner as mandated by 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. 1998) (Historical and Statutory Notes) and VBA's Adjudication Procedure Manual, M21-1, Part IV. After the above requested actions have been completed, the RO should review the appellant's claims. If the benefits sought on appeal remain denied, a supplemental statement of the case should be furnished to the appellant and his representative, and they should be afforded the appropriate period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant receives his due process and fair process rights. No opinion, either legal or factual, is intimated by this REMAND as to the merits of the appellant's claims. No additional action is required by the appellant until he receives further notification from VA. M. W. GREENSTREET Member, Board of Veterans' Appeals