Citation NR: 9720069 Decision Date: 06/09/97 Archive Date: 06/19/97 DOCKET NO. 95-27 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. McGovern, Associate Counsel INTRODUCTION The veteran had active service from January 1964 to December 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the June 1994 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the claim for service connection for PTSD. REMAND The veteran claims that his PTSD is causally related to his service in Vietnam and his confinement in a brig in Spain. The relevant evidence which was of record at the time of the last final denial of the claim in April 1993, by the RO, included the veteran’s service medical records; copies of the veteran’s DD Forms 214, Armed Forces of the United States Report of Transfer or Discharge; the veteran’s May 1989 statement in support of the claim; a June 1989 VA Form 3101, Request for Information; and service personnel records. The service personnel records, which do not appear to be complete, reflect that the veteran arrived in Da Nang, Vietnam on board government aircraft, on May 22, 1965, and that by July 29, 1995, he was at Futema, Okinawa, departing for California. The service medical records reveal that, in June 1966, the veteran sought treatment complaining of occasional dizziness and it was noted that the veteran had been sleeping on post. Physical examination was normal and it was noted that veteran probably had episodes of hypotension of unclear etiology. On July 1, 1966, the veteran sought treatment at the U. S. Naval Hospital in Rota, Spain, and complained of generalized aches and pains, headaches, and nausea. The veteran was placed on bed rest for three days and discharged to duty. There was no diagnosis. At that time, it was recorded that his organization unit was ‘NAVSTABRIG.” In April 1968, the veteran underwent a psychiatric examination in order to evaluate his “inability to concentrate.” The examiner noted that the veteran’s commanding officer indicated that the veteran had not been able to perform satisfactorily. The veteran indicated that he had many home and family problems. The examiner noted that the veteran was alert, cooperative, and well-oriented and that the veteran related easily and spoke coherently. The examiner reported that there was no evidence of disabling neurosis, overt psychosis, or organic brain disease. It was noted that the veteran was mildly depressed, that he had few friends and little social life, that his insight and judgment were intact, and that he was mentally competent. The examiner concluded that there were no psychological contraindications to full duty; however, he advised short term counseling. At the veteran’s November 1973 discharge examination, no psychiatric disorders were noted. The available service personnel records reveal that the veteran was primarily a construction draftsman and a drill instructor; however under “Combat History - Expeditions” it was noted that the veteran participated in “Counter- Insurgency Operation Vietnam” from May 1965 to July 1965. The Board notes that a specific determination as to whether the veteran engaged in combat with the enemy is necessary. Previously of record was an August 1989 statement from the veteran in which he stated that when his plane was arriving in Vietnam it was hit by gunfire; that when he arrived in Vietnam he saw bodies being loaded onto planes; that there were three attacks on his compound in Vietnam; that 2 marines were killed when three children threw a grenade into the compound and that the children were subsequently shot; that two marines died after they were poisoned at a local bar; that a friend was killed when a lighter blew up; that he had had his “head bashed” by some men at his new duty assignment after Vietnam; that he had nightmares and difficulty sleeping in service; that he fell asleep on guard duty and was confined twice in a brig in Spain; and that he received cruel, brutal, and inhumane treatment in the brig. At a July 1990 personal hearing the veteran reported the aforementioned stressors and he stated that there had been three ground attacks on his compound and that he had gone on patrol and engaged in gunfire with the enemy. In December 1990, the veteran submitted a September 1990 report of psychological evaluation conducted by R. Emery, Ph.D. Dr. Emery noted that the veteran reported that he had been in combat “up to ten times” while he was in Vietnam, that he had been subject to enemy fire, and had fired at the Vietcong. It was noted that the veteran’s most traumatic incident in Vietnam was when three children threw a grenade over the fence at his compound and he and other men opened fire and shot and killed the children. Dr. Emery diagnosed PTSD, chronic; major depression, recurrent; alcohol dependence, in partial remission; and personality disorder. In an August 1992 psychological report, R. J. Bateen, Ph.D., diagnosed PTSD and stated that it was uncertain whether the PTSD was caused by the veteran’s experiences in Vietnam or his confinement in the brig. Dr. Bateen reported that it was likely that the veteran experienced PTSD symptoms upon his return from Vietnam which significantly impacted his sleep and resulted in his confinement in the brig for being asleep on duty. Finally, Dr. Bateen stated that the veteran’s experiences in the brig further exacerbated the PTSD symptoms. In April 1993, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for PTSD because the evidence (received since a 1992 Board decision) was essentially cumulative and did not provide information that would verify the alleged inservice stressors. The RO also noted that the asserted inservice stressors were unsupported by the records of the veteran’s military service. The veteran was informed of the rating decision on April 22, 1993, and he did not appeal the rating decision. The relevant additional evidence which has been submitted since the April 1993 rating decision includes VA treatment records which reveal continued treatment for PTSD. In February 1994, the veteran submitted a partially completed PTSD Questionnaire in which he reported that he had been confined to the brig in Rota, Spain, on two occasions for sleeping on duty. He stated that he received cruel and inhumane treatment while in the brig, that he was beaten so badly that he was hospitalized, and that the guards told him to tell the doctors that he had stomach pains. The veteran also stated that “Palmar” was dead. Records of hospitalization in July 1966, while the veteran was assigned to the brig, show a diagnosis of viremia, with no complaints or findings of any trauma reported. The record also contains a February 4, 1994, Social and Industrial Survey report which reveals that the veteran had reported that he went out on night patrols while in Vietnam and that he was scared the whole time. He again reported that some children had thrown a grenade over the fence that surrounded his compound in Vietnam and that the children were then shot. He stated that he had a good friend named Bugsy who died when he stood up and took fire from the enemy. The veteran reported that he believed his PTSD was caused by his experiences in the “red line” brig in Rota, Spain. He also reported that he killed two recruits while working as a drill instructor, that he was a cruel drill instructor, and that he had been investigated 22 times and court martialed twice for assault. The diagnosis was PTSD, depression, and personality disorder, not otherwise specified, with paranoid features and antisocial features. At a February 11, 1994, VA examination, the examiner noted that the claims file was not available for review. The veteran reported that he was particularly bothered by memories of the time that three children threw a grenade into his compound and he and his squad shot and killed the children and by memories of his time in the brig and the cruel treatment he received in the brig. The veteran stated that, while in Vietnam, he was a messenger, that he went on patrols, and that he performed guard duty. He again reported that he had been an abusive drill instructor. The diagnosis was PTSD; alcohol and marijuana dependence, in remission; and personality disorder, antisocial and avoidant traits. At a November 1994 VA examination for mental disorders, the claims file was not available for the examiner to review. The veteran reported that he continued to have intrusive recollections about his treatment in the brig. The examiner noted the veteran’s experience in the brig appeared to be the central trauma that contributed to some of the veteran’s emotional difficulties, in addition to his underlying personality structure. The diagnosis was PTSD; alcohol and marijuana dependence, in remission; and personality disorder, antisocial and avoidant traits. At a December 1994 VA examination for mental disorders, the examiner noted that the claims file had not been reviewed. The veteran reported that, in Vietnam, he performed guard duty, went on five or six patrols, was in the vicinity of small arms fire on several occasions, and saw some men killed. He stated that his friend Bugsy Siegel deliberately stood in the line of enemy small arms fire and was killed. He again reported the same stressors as previously stated. The veteran also reported that he had been abused by some of his stepfathers. The examiner noted that he believed that the veteran did have traumatic experiences in the brig and that they added substantially to his childhood PTSD which was the result of mistreatment by stepfathers. The examiner also noted that he doubted that the veteran had significant PTSD resulting from his Vietnam experiences. The diagnoses were personality disorder, not otherwise specified, with primarily paranoid, passive-aggressive, and sociopathic facets; history of high aggressiveness, fighting, alcohol abuse, and burglary since early adolescence; history of unnecessary homicides; demonstrated deficient empathy; history of deliberate intimidation of others; reported sadistic sexuality with orgasm when assaulting others; history of alcoholism and marijuana use; childhood PTSD with abuse by stepfathers and history of adolescent violence, authority conflict, alienation from schoolmates, and some criminality; and PTSD in fragments is reported following confinement in the brig. The examiner noted that he believed that the veteran did have post-trauma nightmares rather intermittently and some degree of continuing mental suffering from his brig treatment. The examiner stated that industrial disability from the brig experiences was zero to moderate. In December 1996, the veteran submitted a statement in support of the claim and attached a copy of his August 1989 stressor statement and copies of service records which reveal that the veteran was confined for 30 days at hard labor from June 1966 to July 1966 at the U. S. Naval Station Brig in Spain. Although the veteran has asserted that these service records constitute new and material evidence because a VA examiner found that his PTSD was a result of the brutality incurred while confined in the brig, it must be noted that the record of July 1966 hospitalization at the U.S. Naval Station Hospital in Rota, Spain, which has been in the claims folder since 1976, reflects that the veteran’s organization unit at that time was “NAVSTABRIG.” Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (1996). In addition, the Court has articulated that, in addressing claims for service connection for PTSD, consideration must first be given to the evidence required to demonstrate the existence of an alleged stressor, and then, if such stressor is found, a determination as to whether it is of the quality required to support a diagnosis of PTSD must be made. See Zarycki v. Brown, 6 Vet.App. 91 (1993); West v. Brown, 7 Vet.App. 70 (1994). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was “engaged in combat with the enemy.” If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f). If the evidence does not show that he was engaged in combat with the enemy or that the claimed stressors are related to such combat, there must be corroborative evidence of the claimed stressor. See Zarycki v. Brown, 6 Vet.App. 91 (1993). 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 was sufficient to give rise to PTSD. Zarycki v. Brown, 6 Vet.App. 91, 98-99. In West v. Brown, 7 Vet.App. 70 (1994), the Court held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. Inasmuch as the record contains private and VA diagnoses of PTSD, some of which link that diagnosis to the veteran’s claimed stressors (but apparently are not based on a review of the claims file), the Board concludes that VA has a duty to assist the veteran by attempting to obtain corroboration of the stressors. Accordingly, this case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request that he identify all psychiatric treatment or evaluation he has received, including the names and addresses of all physicians and facilities that have treated him. After obtaining appropriate authorization, the RO should attempt to obtain the medical records that are not already in the claims file. Also the veteran should submit or identify any additional evidence pertinent to his claim, including evidence that would corroborate the claimed stressors. He also should provide the approximate dates of his confinement at the brig in Rota. 2. The RO should request from the National Personnel Records Center (NPRC) a copy of the veteran’s complete service personnel record, specifically to include NAVMC 118 (Record of Service) covering the veteran’s duty assignments prior to December 16, 1967; copies of all disciplinary actions, the nature of offenses and punishments awarded, including the dates of confinement and where the veteran was confined; any information regarding Congressional inquiries, any record entries or other documents referring to any investigations or any complaints as to the veteran’s performance of his duties as a drill instructor; any information regarding two courts-martial for assault; and documentation of why and for what period of time the veteran’s unit was awarded the Presidential Unit Citation and which specific unit received the award. 3. The RO should request that the veteran provide additional details regarding the stressors to which he alleges he was exposed in service, particularly the death of Bugsy Siegel and “Palmar.” These details should include specifics as to dates, places, detailed descriptions of events, and any other identifying information concerning any other individuals involved in the events, including their full names, ranks, units of assignment or any other identifying detail. The veteran must be asked to be as specific as possible because, without such details, an adequate search for verifying information cannot be conducted. 4. With information from the veteran and/or the service records as to the dates of any period of confinement, RO should contact the Navy and try to obtain brig logs or other information pertaining to the veteran’s confinement at the Naval Station Brig in Rota, Spain, in an attempt to corroborate his allegations of cruel treatment while confined. 5. Thereafter, the RO should refer the case to the Commandant of the Marine Corps, Headquarters, U.S. Marine Corps, Code MMRB, Quantico, VA 22134-5030 in an attempt to verify the veteran’s alleged stressors. Included should be all stressor statements from the veteran, a copy of his service personnel records and his DD Forms 214, and a list of any other stressors as reported in medical reports and personal hearing transcripts, including regarding treatment he claims to have received at the Navy Brig in Rota, Spain. The Commandant should be requested to provide any information which might corroborate the veteran’s alleged stressors, to include any historical information regarding the activities of the veteran’s unit in Vietnam while he served with it; confirmation of the deaths of any individuals identified by name and the circumstances of death; confirmation that the compound at which the veteran served in Vietnam with a Headquarters Company was attacked three times during the period that he was there; and any documentation that the tail section of the government aircraft that transported the veteran from MCAF, Futema, Okinawa, to Da Nang on May 22, 1965, was struck by gunfire. It is specifically requested that an attempt be made to corroborate other incidents reported in the veteran’s 13 page statement, including the treatment he reportedly was subjected to at the Navy Brig in Rota, Spain. If the requested information is not available through this source, the RO should contact the Marine Corps Historical Center, Building 58, Washington Navy Yard, Washington, D.C. 20374-0530, and any other potential sources from which it can be obtained. 6. With the additional information obtained, the RO should review the entire claims file to include the veteran’s complete service medical and personnel records, all VA examination reports, and any evidence obtained pursuant to this remand. The RO must then make a specific determination, based upon the complete record, of whether the veteran was engaged in combat with the enemy and whether he was exposed to a stressor or stressors in service, and if so, the nature of the specific stressor or stressors should be identified. In rendering this determination, the attention of the RO is directed to the cases of Zarycki v. Brown, 6 Vet.App. 91 (1993) and West v. Brown, 7 Vet.App. 70 (1994). 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. Evidence corroborating a stressor would be new and material evidence. 7. If the RO determines that the veteran was exposed to any stressor(s), it afford the veteran another VA psychiatric examination by a board certified psychiatrist, to determine the etiology of any PTSD. The RO must specify for the examiner any stressor(s) that it has determined are established by the record and the examiner must be instructed that only those events may be considered as stressors for the purpose of determining whether the appellant has service related PTSD. The claims folder and a separate copy of this remand must be made available to the examiner, the receipt and review of which must be acknowledged in the examination report. The entire claims folder must be reviewed by the examiner. The examination should include psychological tests with PTSD subscales, the results of which should be reviewed before a final psychiatric diagnosis is given. Specifically, the examiner must determine whether or not the veteran has PTSD. If a diagnosis of PTSD is made, the examiner should specify: (1) whether the stressor(s) found to be established by the RO, were sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiners. If it is concluded that PTSD preexisted service or is the result of pre-service trauma, the examiner should also comment as to whether any pre-existing PTSD was aggravated by the verified inservice stressor(s) or otherwise aggravated by service. A complete rationale for all opinions expressed by the examiner must be provided. 8. The RO should then review the veteran’s claims file. If the examination report is not responsive to the Board’s instructions, it should be returned as inadequate. 9. The claim should then be readjudicated with consideration of all pertinent law, regulations, and Court decisions, to include Moreau v. Brown, 9 Vet.App. 389 (1996); West v. Brown, 7 Vet.App. 70 (1994); and Zarycki v. Brown, 6 Vet.App. 91 (1993). If the veteran’s claim remains in a denied status, he and his representative should be provided with a Supplemental Statement of the Case, which includes any additional pertinent law and regulations and a full discussion of action taken on the veteran’s claim, consistent with the Court’s instructions in Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The applicable response time should be allowed. This case should then be returned to the Board, if in order, after compliance with the customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the 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. JANE E. SHARP Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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 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) (1996). - 2 -