Citation Nr: 0003625 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 97-10 102A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The veteran's period of active service is from August 1968 to November 1972. The Board notes that, in the September 1998 substantive appeal, the veteran requested an appeal hearing before a member of the Board at the Central Office in Washington, D.C. Subsequently, in a December 1998 statement, the veteran indicated that he no longer wished to have such hearing. No further requests for an appeal hearing by either the veteran or his representative are of record. As such, the veteran's September 1998 request for an appeal hearing before a member of the Board at the Central Office in Washington, D.C., will be considered withdrawn and the Board will proceed with its review on the present record. See 38 C.F.R. § 20.702 (1999). In addition, the Board notes that the record includes an April 1997 VA form 21-4138 (Statement in Support of Claim) perfecting the appeal of the issue of entitlement to service connection for peripheral neuropathy, to include as secondary to Agent Orange exposure. However, in a July 1999 VA form 21-4138, the veteran indicated he desired to let this claim stand. As such, the Board finds the veteran's claim of service connection for peripheral neuropathy has been withdrawn. See 38 C.F.R. § 20.204 (1999). Furthermore, in a February 1998 VA form 21-4138 the veteran attempted to reopen his claims of service connection for the residuals of right wrist ganglion, hepatitis, and aneurysm/memory loss. However, as the only issue currently before the Board is that set forth on the title page of this decision, these matters are referred to the RO for appropriate action. FINDING OF FACT The veteran has been diagnosed with PTSD related to his service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (1999). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (1999). The threshold question which must be answered in this case, however, is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the case of PTSD, a claim of service connection for PTSD is deemed well-grounded when there is "[1] medical evidence of a current [PTSD] disability; [2] 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 [3] medical evidence of a nexus between service and the current PTSD disability." Cohen v. Brown, 10 Vet. App. 128, 137 (1997) (citations omitted). With respect to the veteran's stressors, the claims file contains a written statement from Sandy Foote, the veteran's sister, tending to link the veteran's present behavior/PTSD symptomatology to his service. As well, the claims file includes November 1997, February 1998 and March 1998 VA forms 21-4138 (Statement in Support of Claim) describing the veteran's reported stressors. Specifically, the veteran indicates he engaged in combat against the enemy while serving with Company A, 125th Signal Battalion, 25th Infantry Division, Headquarters and Headquarters Company, between February 1969 and March 1970. He was required to carry and M-16, was involved in field sweeps, and saw many dead bodies and seriously wounded soldiers. In addition, he reports he was involved in combat while serving in CuChi, Vietnam, with the 34th and 25th General Support Units, 105th Infantry Division, as he was involved in the 1969 Tet and CuChi offensives. Furthermore, in the November 1997, February 1998 and March 1998 VA forms 21-4138, the veteran noted he was sexually assaulted by a Sergeant in November or December of 1969, while on transfer from the 25th Infantry Division, 62 Intelligence, to the 34th General Support Group in Nha Trang. He reported the incident to the Military Police service in Saigon at that time, and the offending Sergeant was arrested. More importantly, the veteran also noted that, on October 23, 1969, he was physically assaulted/attacked by two men whom he had previously reported for smoking marijuana. In this regard, the Board finds this stressor has been verified by the veteran's service medical records which contain October 24, 1969 medical notations indicating the veteran was beaten the prior day by two men, had pain all over his body, and was treated for multiple trauma. With respect to the medical evidence of record, the record includes post-service medical records from the Leavenworth VA Medical Center (VAMC) dated from May 1997 to January 1998 describing the treatment the veteran received over time for various health problems including, but not limited to, depression, anxiety, seizure disorder and PTSD. In particular, the records include January 1998 notations indicating the veteran continued to think much about Vietnam, and that the more he thought of Vietnam, the more aggravated and depressed he got; his diagnosis was PTSD. In addition, a September 1997 VA examination report contains a lengthy discussion of the veteran's stressors, which basically touches on the stressors reported in the November 1997, February 1998 and March 1998 VA forms 21-4138, as described above. As well, the examination report notes the veteran reported flashbacks which were mostly flashes of lights, the Tet offensive, napalm bombs, dead/wounded soldiers, planes shooting down gun fire, etc. He also reported nightmares and problems sleeping. Upon examination, the veteran was found to be paranoid/hypervigilant, especially when in shopping malls, and emotionally detached from others with the exception of his family. His diagnoses included PTSD, alcohol dependence in remission, and having thoughts of Vietnam stresses, both of his combat experiences and sexual assault. After a review of the evidence, the Board finds that the evidence supports the conclusion that the veteran's claim of service connection for PTSD is well grounded. Specifically, the Board concludes that the medical records from the Leavenworth VAMC and the September 1997 VA examination report provide the necessary nexus between the veteran's current diagnosis of PTSD, and his active service. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). However, as additional development is necessary prior to final adjudication on the merits, the veteran's claim is remanded to the RO for such development. ORDER The veteran's claim of entitlement to service connection for PTSD is well grounded; the appeal is granted to this extent only. REMAND With respect to the claim of service connection for PTSD, the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. If the VA determines that the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, providing that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence which corroborate the veteran's testimony or statements. See Zarycki, 6 Vet. App. 98; Doran v. Brown, 10 Vet. App. 283 (1994). In this regard, the veteran reports he served in the Republic of Vietnam during his active service and his DA-20 shows he in fact served in Vietnam from February 1969 to March 1970 and from January 1971 to December 1971. However, the Board finds that the veteran's alleged stressors include some combat related stressors, and that the present record does not show he engaged in "combat with the enemy" and/or that he received any related recognized combat-specific awards or individual, as opposed to unit, military combat citations. As such, the veteran has not shown he qualifies for the combat veteran's special consideration under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), as related to the claimed combat stressors. Therefore, as the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged combat related stressors, the record must contain service records or other evidence which corroborate the veteran's testimony or statements. See Zarycki, 6 Vet. App. 98; Doran v. Brown, 10 Vet. App. 283 (1994). However, the Board notes it has found that the October 23, 1969 noncombat related incident described above, where the veteran was assaulted by two fellow solider, has been verified by the service medical records. Nevertheless, given that the veteran has established his claim of service connection is well-grounded, the Board finds that the case must be remanded for additional development prior to appellate adjudication. Specifically, the Board notes the claims file does not contain any indication that the RO has attempted to verify either the combat-related stressors or the sexual assault stressor, by contacting the appropriate custodian of the relevant service records. In this regard, the Board finds that there is no indication in the claims file that the above mentioned PTSD diagnosis is specifically related to any specific traumatic events which have been verified, including the October 23, 1969 incident. The law is clear that any diagnosis of PTSD must be based on a stressor history which has been verified. 38 C.F.R. § 3.304(f). As an examination based on a questionable history is inadequate for rating purposes, West v. Brown, 7 Vet. App. 70, 78 (1994), it is necessary that the veteran's stressors which have not been verified be verified, as well as that the veteran be provided a new examination where the examiner has an accurate, verified history of the veteran's military service. In addition, when determining the sufficiency of the claimed in-service stressors reported by the veteran, the Board notes that it is no longer necessary that the stressor be "outside the range of usual human experience" and be "markedly distressing to almost anyone," as required by the Diagnostic and Statistical Manual of Mental Disorders, Third Edition, revised (DSM-III). However, the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 1994 (DSM-IV), still requires that a person have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and "the person's response [must have] involved intense fear, helplessness, or horror." See 38 C.F.R. §§ 4.125-4.130 (1999); See also Cohen v. Brown, 10 Vet. App. 128, 141-142 (1997). Where "there has been an 'unequivocal' diagnosis of PTSD by mental heath professionals, the adjudicators must presume that the diagnosis was made in accordance with the applicable DSM criteria as to both adequacy of symptomatology and sufficiency of the stressor (or stressors)." Cohen, 10 Vet. App. at 153. Therefore, in cases where an adjudicator has determined that a diagnosis of PTSD is unsupported by the facts or findings, he or she may not make such a finding without adequate supporting medical evidence. The only proper course in such a situation is to note the potential deficiencies (e.g., inadequacy of stressors or symptomatology), and request a further examination taking these factors into consideration. See Cohen, 10 Vet. App. at 140, citing Massey v. Brown, 7 Vet. App. 204, 208 (1994); 38 C.F.R. § 4.126 (1999). Moreover, the Board notes that it has jurisdiction over appeals involving benefits under the laws administered by VA. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.101 (1999). An appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999). A Notice of Disagreement with a determination by the agency of original jurisdiction must be filed within one year from the date that that agency mails notice of the determination to the claimant. Otherwise, the determination will become final. 38 C.F.R. § 20.302 (1999). When during the course of review it is determined that further evidence or clarification of the evidence, or correction of a procedural defect is essential for a proper appellate decision, a case shall be remanded to the agency of original jurisdiction. 38 C.F.R. § 19.9 (1999). See also Manlincon v. West, 12 Vet. App. 238 (1999). In this case, in a January 1997 rating decision, the veteran was denied service connection for an eye/vision disorder and a skin disorder. Subsequently, in an April 1997 VA form 21-4138 (Statement in Support of Claim), the veteran expressed disagreement with the RO's denial. As the present record does not contain a statement of the case addressing these issues, and as the veteran is found to have initiated the appellate process with respect to these issues, the issues must be REMANDED for further development, as per Manlincon v. West, 12 Vet. App. 238 (1999). See 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Therefore, in light of the foregoing, and in order to fairly and fully adjudicate the veteran's claims, the case is REMANDED to the RO for the following action: 1. The veteran and his representative should be given a Statement of the Case covering all pertinent evidence on the veteran's claims of service connection for an eye/vision disorder and a skin disorder. The veteran and his representative should be provided with information regarding the appropriate time period within which to submit a Substantive Appeal. And, if a Substantive Appeal is received, the case should be processed and returned to the Board, in compliance with the applicable procedures regarding the processing of appeals. 2. With the information obtained from the veteran's personnel records; the November 1997, February 1998 and March 1998 VA forms 21-4138; and the medical evidence of record, the RO should review the file and prepare a summary of all the claimed stressors. This summary and a copy of the veteran's DD 214s, DA 20, and all associated service documents should be sent to the U. S. Armed Services Center for Research of Unit Records (USASCRUR) for verification of the veteran's claimed stressors, with the exception of the October 23, 1969 incident which the Board has already found to be verified by the service medical records. This review is specifically requested to include a search for any situation or operational reports pertaining to any incidents described by the veteran. Any information obtained is to be associated with the claims folder. 3. Following receipt of the report from USASCRUR and the completion of any additional development warranted or suggested by that office, the RO must prepare a report detailing the nature of any in-service stressful event verified by USASCRUR or other credible evidence. This report is to be added to the claims folder. 4. After completing the above actions, the RO should schedule the veteran for a VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present, including PTSD. The veteran should be advised that failure to report for the scheduled VA examination may have adverse consequences, including the possible denial of his claim. Connolly v. Derwinski, 1 Vet. App. 566 (1991). The RO must provide the examiner with the report of the verified stressor or stressors described in paragraph 3, above, and inform him/her of the October 23, 1969 verified stressor. The examiner should be instructed that only these events may be considered for the purpose of determining whether exposure to a stressor in service has resulted in any current PTSD symptoms. The examiner should be specifically requested to determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. If a diagnosis of PTSD is deemed appropriate, the examiner must comment upon the link between the current symptomatology and one or more of the in- service stressors verified (found to be established) by the RO. In addition, the examiner should provide an opinion as to whether it is at least as likely as not that the veteran's diagnosis of PTSD is related to the verified stressors. The report of examination should include a complete rationale for all opinions expressed. The claims folder, or all pertinent medical records, service records and reports, must be made available to the examiner for review at all times relevant to the examination. 5. After undertaking any development deemed appropriate in addition to that specified above, the RO should review the examination report. If the report is not in complete compliance with the instructions provided above, appropriate action should be taken. If the examiner relied upon a history which is not verified, that examination report must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of PTSD, related to service, based on an examination which relied upon an unverified history, is inadequate. Cohen, 10 Vet. App. at 140; West, 7 Vet. App. at 77. 6. Thereafter, the RO should readjudicate the issue of service connection for PTSD, in light of relevant decisions including Cohen, supra. In making its determination, the RO should review all the relevant evidence in the claims file. If the determination remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. He 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). However, no action is required of the veteran until he is notified. WARREN W. RICE, JR. Member, Board of Veterans' Appeals