BVA9505080 DOCKET NO. 93-13 988 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD A. Shawkey, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to October 1967. The veteran filed an application for compensation or pension in August 1991. A rating decision was issued by the RO in March 1992, denying service connection for PTSD, dysthymia, and a personality disorder and a claim for pension. A timely appeal with respect to the denial of service connection for PTSD and dysthymia was filed. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has depression and PTSD related to his military service. Specifically, he asserts that he has experienced depression since about July 1967, when he sought treatment in Vietnam. He also maintains that he experienced several stressful events while serving in Vietnam -- events so traumatic that caused him to develop PTSD. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a grant of service connection for depression. (Final action on the claim of service connection for PTSD is deferred pending completion of the development sought in the REMAND below.) FINDING OF FACT The veteran experiences depression that began during his military service. CONCLUSION OF LAW Depression was incurred during active wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question at issue is whether the veteran has presented a well-grounded claim. The veteran meets his burden of presenting a well-grounded claim once he has "submitt[ed] evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim has been defined in Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990) as "a plausible claim, one which is meritorious on its own or capable of substantiation." After carefully reviewing all of the evidence and material of record in this case, the Board finds that the veteran has fulfilled his initial burden of submitting a well- grounded claim of service connection for depression. The record contains several medical reports diagnosing the veteran with depression. These diagnoses were made by both private psychiatrists and VA examiners, some of whom have attributed the veteran's depression to his military experience. The record also contains the veteran's lay statements regarding his military experience which he believes is responsible for causing his depressive condition. In a September 1991 statement, he explained that approximately 8 to 9 months into his service in Vietnam he began to feel depressed. He describes specific stressors that greatly added to his depressive mood. He has been consistent when relaying these stressors in various written statements and medical examinations. In addition to his statements, there are lay statements from his family members who noticed a significant change in him upon his return from service. His sister specifically reported that, upon entering military service, he was an "energetic, positive, truly jolly young man," but that after his military discharge he had become "cynical" and had "no energy or ambition." This sort of evidence makes his claim plausible. The next question for determination is whether the evidence is sufficient to substantiate the claim for service connection for depression. Pursuant to 38 U.S.C.A. § 5107(b), when "there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." The RO has based its determination on the fact that there is no medical evidence during the veteran's military service or at the time of his release from service establishing depression. However, as stated in Gilbert v. Derwinski, 1 Vet. App., 49, 54 (1990), "the statutory 'benefit of the doubt' standard of proof for cases dealing with veterans benefits is at the farthest end of the spectrum, beyond even the 'fair preponderance' standard." Although there are no medical findings at the time of the veteran's service to establish a condition of depression, there is other positive evidence which shows the existence of his depressive state of mind while in service. This evidence includes a letter written by him to his family during the war. In his letter, he makes the following statement, "I can't think of anything positive this eve so will close and go to bed. I try not to write until I can be and think cheerful as depressed mood letters such as this only give you something concrete to worry about..." The veteran does mention in his letter that he voluntarily saw a division psychiatrist, even though there are no records to confirm such a visit. Additional supporting evidence includes his completion of Standard Form (SF) 89 -- Report Of Medical History. On this form, there is a box for the veteran to check if he ever had or has "depression or excessive worry." Significantly, he did not check this box when he reported for duty on October 27, 1965, but he did mention the fact that he had experienced depression when he completed the report of medical history on the date of his discharge in October 1967. The first supporting medical evidence after service is a medical report from Dr. Hill dated in January 1979. Dr. Hill indicated that the veteran was seen on this date for "combat fatigue" and opined that this problem was probably of ten years' duration. There is other evidence in support of the claim which shows that he began receiving psychiatric care from Phillips E. Roth, M.D., in mid-July 1991 and has more recently been seen by Mohammad K. Kahn, M.D. For example, Dr. Roth opined in a medical report dated December 23, 1991, that the veteran's severe depression was exacerbated by the severe stress he experienced in Vietnam. Moreover, Dr. Kahn submitted a medical report dated October 19, 1992, wherein he diagnosed depression and opined that the veteran had had difficulty adjusting to his work and civilian life after leaving the military. The record reflects that the veteran was also seen on several occasions by VA examiners, and on each occasion, depression was noted. The most recent examination took place in December 1992. Notably, two VA examiners diagnosed the veteran with major depression and concluded that "there was no evidence of depression before Vietnam and that the overall Vietnamese experiences began the depressive pattern which [has] haunted him ever since..." This is strong evidence in support of the claim. Although depression was not clinically detected during service, the most recent medical opinion regarding the onset of the disability, coupled with the other probative medical opinions supporting the claim and the fact that the veteran displayed a depressive frame of mind while in service leads the Board to conclude that the evidence is sufficient to support a claim of service connection for depression under the "benefit of the doubt" rule. § 5107. ORDER Service connection for depression is granted. REMAND As to the claim of service connection for PTSD, it has been determined by the Board that this claim is well-grounded based on reasons similar to those stated in the decision above. There are several medical reports in the record that establish a diagnosis of PTSD and attribute the condition to specific traumatic events experienced in service as reported by the veteran. The in- service stressors claimed by the veteran include witnessing a fellow serviceman get shot in the buttocks by sniper fire while playing pool in the Infantry dayroom, witnessing a young girl get run over by a two-ton truck and being the first one to approach the body, witnessing a helicopter crash from a distance, coming across five Vietcong in a rice paddy while driving a truck, and unknowingly consuming human flesh. The veteran also claims to have undergone a mortar attack that he slept through which killed some troops in nearby areas and mentions a rocket attack at Bien Hoa Air Base at which he was not present, but which killed his friend. Although the Board is not required under Wood v. Derwinski, 1 Vet. App. 190 (1991) to accept either the veteran's uncorroborated account of his Vietnam experiences or a psychiatrist's unsubstantiated post-service opinion that the veteran's PTSD is a result of service, it is required to fulfill its statutory duty to assist the veteran in developing his claim. This duty is invoked when evidence has been submitted which justifies a belief by a fair and impartial individual that the claim is well-grounded. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The RO did obtain the veteran's service records and it did request from him a detailed description of his claimed stressors, including known dates, places and names. In response to its request, he provided some names and approximate dates of occurrences. Although it is uncertain whether all of this information can be verified, it is the obligation of the Board under 38 U.S.C.A. § 5107(a) to assist him in developing his claim. Hence, the case is REMANDED for the following actions: 1. The veteran should be contacted, through his representative, and asked to provide as much detail as possible regarding each of the claimed stressors, including dates, times, locations, units of assignment, names of others who were involved, and the specifics of each event experienced. In particular, he should be asked to provide the approximate date and location of the helicopter crash that he witnessed and the name of the military unit that was affected. He should also be asked to provide the name of the MP, if known, to whom he reported his run-in with the five Vietcong and the name of the fellow serviceman who was riding shotgun with him that day. 2. The service department should be asked to examine each incident reported by the veteran and provide as much information as possible about his having engaged in any of the claimed events. 3. The RO should obtain the following regarding the veteran's service with the Department of the Army: -Daily Journals, Operational Reports-Lessons Learned (OR-LLs), Combat Operations After Action reports (COAARs), Unit Histories. National Archive and Records Administration Washington National Records Center Military Archives Division Washington, D.C. 20409 -Morning Reports National Archives and Records Administration ATTN: NCPMA-O 9700 Page Boulevard St. Louis, MO 63132-5200 This information should be forwarded to the United States Army and Joint Services Environmental Support Group for review. 4. Information should be obtained from the veteran necessary to locate records of his year-long treatment at a vet center. (This was mentioned by him when he was seen by VA in December 1992). Thereafter, an examination should be conducted by a board of psychiatrists. The examiners should provide an opinion as to whether the veteran meets all the diagnostic criteria for PTSD. This is required, in part, because of the need to have the sufficiency of any stressor clinically established. West v. Brown, 7 Vet. App. 70, 79 (1994). 5. The RO should take adjudicatory action on the veteran's claim of service connection for PTSD. If the benefit sought is denied, a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice. The purposes of the remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. M. CHEEK 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. As to the claim for service connection for PTSD, 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).