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The approaches and solutions to the
development and presentation of PTSD claims and/or the presentation and
development of PTSD claims are many and varied and depend on the
environment and events contributing to the onset of the disorder as well
as the gender of the veteran claimant. The 16TH Infantry Regiment
Association is concerned in this manual with PTSD claims evolving from
the sequelae of military service in a combat zone where the claimant's
military training, unit assignment and resume of awards, decorations and
citations do not appear to corroborate the stressful event(s) necessary
to evoke the onset of PTSD symptomatology (regardless that medical
experts have diagnosed the disorder according to the diagnostic criteria
set out by the American Psychiatric Association in the DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS).
The Association’s concern in
the development of PTSD claims is based on a working education of the
adapted changes to the diagnostic criteria for PTSD in the DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, the latest
changes in VA statute, regulation and substantive rules related to the
adjudication of PTSD claims, the most recent holdings of the Court of
Veterans Appeals in PTSD interest cases and a thorough education on the
resource materials available for developing the, as yet, unformulated
combat history. These subjects are the focus of the discussion
following.
The American Psychiatric Association has
changed the criteria for diagnosing PTSD and this should result in the
U.S. Department of Veterans Affairs (VA) giving a higher approval rate
of service connection for PTSD. These criteria are contained in the
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition
(DSM-IV) and are significantly different from the criteria in previous
editions of the DSM. The new criteria recognize that a particular event
may be traumatic to one person and not to another.
In contrast, the previous edition of the
DSM (DSM-III-R; Third Edition revised) listed the second diagnostic
requirement for a stressor as an event producing PTSD symptoms which
would "be markedly distressing to almost anyone." And in DSM-III (the
edition previous to DSM-III-R) the second diagnostic requirement for a
stressor was that the event "evoke significant symptoms of distress in
most people." In all of the years since the advent of the diagnostic
category for PTSD the VA has denied many veterans service connection for
PTSD claims because the traumatic events alleged by them were not the
kind that would be distressing to "almost everyone." With this more
subjective criteria in effect now—"that a particular event may be
traumatic to one person and not to another"—for the measurement of a
stressful event the VA will be hard put in the future to deny service
connection by concluding that the events experienced by veterans would
not be distressing to almost everyone.
Why should the VA adhere to
the liberalized criteria at DSM-IV? On October 8, 1996, the VA issued a
final rule amending that portion of its Schedule for Rating Disabilities
pertaining to mental disorders. 61 Fed.Reg. 52,695 (Oct. 8, 1996(; see
also 60 Fed.Reg. 54,826 (Oct. 26, 1995). The revised regulations took
effect on November 7, 1996. This new final rule makes no change in the
specific 38 C.F.R. Section 3.304(f) PTSD regulation, but revised 38
C.F.R. Section 4.125 and Section 4.126 and replaced Section 4.130 with a
new section that specifically adopts DSM-IV as the basis for the
nomenclature of the rating schedule for mental disorders. 61 Fed.Reg.
52,700 (Nov. 1996 amendments). The definitions involved in these changes
are given even greater meaning by the Court of Veterans Appeals in its
decision in Cohen v. Brown, 10 Vet.App. 128 (1997) which is discussed at
length below.
A. ESSENTIAL
FEATURE:
In the development of any Posttraumatic Stress Disorder
there first must be direct personal experience of an event which
involves actual or threatened death or serious injury, or other threat
to the physical integrity; or witnessing an event that involves death,
injury, or a threat to the physical integrity of another person; or
learning about unexpected or violent death, serious harm, or threat of
death or injury experienced by a family member or other close associate.
(APPENDIX 1).
B. TRAUMATIC EVENTS:
An experienced
traumatic event could include military combat, violent personal assault
(sexual assault, physical attack, robbery, mugging), being kidnapped,
being taken hostage, terrorist attack, torture, incarceration as a
prisoner of war or in a concentration or POW camp, natural or manmade
disasters (floods, fires, earthquakes, hurricanes, tornadoes),
automobile accidents, plane crashes, or diagnosis with a
life-threatening illness.
Witnessed events can include observing the
serious injury or unnatural death of another person due to violent
assault, accident, war, or disaster or unexpectedly witnessing a dead
body or body parts. Events experienced by others that are learned about
can include violent personal assault, serious accident, or serious
injury experienced by a family member or a close friend; or learning
about the sudden, unexpected death of a family member or a close friend;
or learning that one's child has a life-threatening disease. The
disorder may be especially severe or long lasting when the stressor is
of human design (e.g., torture, rape). The likelihood of developing this
disorder may increase as the intensity of a physical proximity to the
stressor increase.
C. RE-EXPERIENCING THE EVENT:
The traumatic event
can be reexperienced in various ways. Commonly the person has recurrent
and intrusive recollections of the event or recurrent distressing dreams
during which the event is replayed. In rare instances, the person
experiences dissociative states that last from a few seconds to several
hours, or even days, during which components of the event are relived
and the person behaves as though experiencing the event at that moment.
Intense psychological distress or physiological reactivity often occurs
when the person is exposed to triggering events that resemble or
symbolize an aspect of the traumatic event (e.g.,
anniversaries of
the traumatic event; cold, snowy weather or uniformed guards for
survivors of death camps in cold climates; hot, humid weather for combat
veterans of the South Pacific; entering any elevator for a woman who was
raped in an elevator). These criteria are listed at B.(1) through (5),
DSM-IV, p. 428.
D. STIMULI AVOIDANCE:
Stimuli associated with the trauma are
persistently avoided. The person commonly makes deliberate efforts to
avoid thoughts, feelings, or conversations about the traumatic event and
to avoid activities, situations, or people who arouse recollections of
it. This avoidance of reminders may include amnesia for an important
aspect of the traumatic event. Diminished responsiveness to the external
world, referred to as "psychic numbing" or "emotional anesthesia,"
usually begins soon after the traumatic event. The individual may
complain of having markedly diminished interest or participation in
previously enjoyed activities, of feeling detached or estranged from
other people, or of having markedly reduced ability to feel emotions
(especially those associated with intimacy, tenderness, and sexuality).
The individual may have a sense of a foreshortened future (e.g., not
expecting to have a career, marriage, children, or a normal life span).
These criteria are listed at C.(1) through (7), of the DSM-IV, p. 428.E.
E. ANXIETY AND AROUSAL:
The individual has persistent symptoms of
anxiety or increased arousal that were not present before the trauma.
These symptoms may include difficulty falling or staying asleep that may
be due to recurrent nightmares during which the traumatic event is
relived, hypervigilance, and exaggerated startle response. Some
individuals report irritability or outbursts of anger or difficulty
concentrating or completing tasks. These criteria are listed at D.(1)
through (5), DSM-IV, p. 428.
Section 309.81 of the DSM-IV discusses in
depth the associated features and disorders, specific culture and age
features, prevalence, course, differential diagnosis and outlines the
diagnostic criteria for the diagnosis of Posttraumatic Stress Disorder.
Knowing, then, the psychiatric imprimatur
for PTSD, it is presumed when one reads a medical assessment providing a
diagnosis of PTSD that the mental health expert, whether or not he or
she quoted the criteria at length or in brief, made a diagnosis relying
on these criteria as catalogued in DSM-IV.
In a hallmark example claim for service connection
of PTSD, the following fact situation is always present:
- The veteran has a diagnosis of PTSD by a certified
medical professional
("a clear diagnosis of the condition");
- There is prima facie evidence of a stressor event in
military service
sufficient to cause the disability ("credible
supporting evidence
that the in[-]service stressor actually
occurred"); and,
- The medical professional has connected PTSD to
military service.
("a link, established by medical evidence, between
current symptom-
atology and the claimed in[-]service stressor").
The examination
diagnosing PTSD with a presenting opinion that the PTSD has a causal
nexus, or connection, with the military experience in a combat zone can
easily be obtained if the veteran is receiving treatment for PTSD and
the treating professional believes that the veteran’s military service,
whether that service has been established for the treating professional
by a testament of records documentation, or anecdotally (the tale is
simply related to him by the veteran in consultation without other
certification). It is the certification of the military service in a
combat zone that poses a stumbling block to many veterans, even though
an unequivocal diagnosis of PTSD has been obtained showing a causal
nexus between the current symptomatology and the sequelae of military
service in a combat zone (stressor).
VA regulations in 38 C.F.R. Section 3.304
that deal expressly with the adjudication of PTSD claims provide, in
pertinent part, as follows:
F. POST TRAUMATIC STRESS DISORDER (PTSD):
Service connection for posttraumatic
stress disorder 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. If the claimed stressor is related to combat,
service department evidence that the veteran was awarded the Purple
Heart, Combat Infantryman Badge, or similar combat citations will be
accepted, in the absence of evidence to the contrary, as conclusive
evidence of the claimed in[-] service stressor. (boldface-italic
emphasis added).
The VA ADJUDICATION PROCEDURE MANUAL,
M21-1, or M21-1, Part VI, ¶ 11.38 (formerly M21-1, Part VI, ¶ 7.46),
further defines conclusive evidence for a stressor at b.(1):
If the
claimed stressor is related to combat, in the absence of information to
the contrary, receipt of any of the following individual decorations
will be considered evidence of participation in a stressful episode:
Air Force Cross
Air Medal with "V" Device
Army Commendation Medal with "V" Device
Bronze Star Medal
with "V" Device
Combat Action Ribbon
Combat
Infantryman Badge
Combat medical Badge
Distinguished
Medical Badge
Distinguished Flying Cross
Distinguished
Service Cross
Joint Service Commendation Medal with "V"
Device
Medal of Honor
Navy Commendation Medal with "V"
Device
Navy Cross
Purple Heart
Silver Star
Other supportive evidence includes, but is
not limited to, plane crash, ship sinking, explosion, rape or assault,
duty on a burn ward or in graves registration unit. POW status which
satisfies the requirements of 38 CFR 3.1(y) will also be considered
conclusive evidence of an in-service stressor.
In claims where the veteran has a clear
diagnosis of PTSD, there is a causal nexus between current
symptomatology and the claimed in-service stressor and the veteran is in
possession of one of the above awards listed at M21-1, ¶ 11.38 b.(1), or
there is evidence of record documenting the traumatic event, no matter
what its nature, the veteran prevails. There can be no just denial of
this type of claim and the regulatory and Manual caveat, "in the absence
of information to the contrary" is never seen in operation in these
types of claims. That is, where the veteran possesses one of the
decorations listed in ¶11.38 b.(1), the VA has never provided
"information to the contrary."(APPENDIX 2)
The hallmark PTSD claim is one that
completes itself and the outcome leaves little to research, development
or representation. It is the PTSD claim outside these boundaries that
calls on the skills of the veterans' advocate in the development of the
second—and most vital—PTSD service-connection element of the
well-grounded PTSD claim, e.g., that there is "credible supporting
evidence that the claimed in[-]service stressor actually occurred.
There probably exists
in records repositories and archives in the U.S. the specific or general
evidence needed to successfully ground all PTSD claims which lack the
necessary second PTSD-service connection element. The trick is to know
where such information is stored and how to get it.
A. WHERE YOU START
You start by obtaining the basic military
biography of the veteran claimant. The following is a list of the
documents for each military service needed to identify environmental
support information to develop the claimed in-service stressor:
ARMY
a) Enlisted Qualification Record (DA Form 20), pages
23 through 26).
b) Officer Qualification Record (DA Form 66), pages
27 through 30.
NAVY
a) Enlisted record of “Transfer and Receipts” (p 12),
pages 31 and 32.
b) Enlisted record of “Administrative Remarks” (p
13), page 33.
c) Officer record, NAVPERS 130/51, “Officer Data
Card”, page 34.
AIR FORCE
a) Airman Military Record (AF Form 7), Enlisted,
pages 35 through 38.
b) Officer Military Record (AF Form 11), pages 39 and
40.
c) Performance Reports: Copies of the Performance
Reports covering
the period of the claim should be obtained also.
MARINE CORPS
a) NAVMC 118 (3), Record of Service, both Officer and
Enlisted, pages 41 through 43.
b) NAVMC 118 (9), Combat History and Awards, both
Officer and Enlisted, pages 44 and 45.
c) NAVMC 118 (17), Sea and Air Travel-Embarkation
Slips, Enlisted page 46.
COAST GUARD
a) Enlisted Record, “Endorsement on Order Sheet” (DOT
Form CG 3312B).
b) Officer Record, “Service Records Card” (CGHQ Form
3359), page 47.
ALL SERVICES - DD Form 214, page 48.
POINT OF CONTACT FOR THESE RECORDS
National Personnel Records Center
(Military
Personnel Records)
9700 Page Avenue
St. Louis, MO 63132-5100
With these records in hand, you can
pinpoint assignment and chronology data to 1) develop Order of Battle
information, 2) submit a request for records development to the U.S.
Armed Services Center for Research of Unit Records (formerly
Environmental Support Group), and 3) direct the veteran to the National
Archive in College Park, MD, for hands-on research of records.
B. ORDER OF BATTLE
Once the military personnel records have
been received they can be evaluated using three organizational and
historical publications. Shelby Stanton has compiled a comprehensive
Order of Battle for both World War II (U.S. Army) and Vietnam (U.S. Army
and Allied Forces). Unfortunately, volumes have not yet been prepared
for the Korean War and the Persian Gulf War (as well as the military
actions in Grenada, Panama, El Salvador and Somalia). Advocates can also
obtain from the Service Department copies of the Uniform Service’s Unit
Citation and Campaign Participation Credit Register (by war).
The
Order of Battle, U.S. Army, World War II, Presidio Press, Novato, CA,
1984, lists in detail the entire organization structure of the U.S. Army
in WW II from Division to Company with Campaign Key Codes and Ground
Forces Installations locator. (APPENDIX 3) The Vietnam Order of Battle,
Atlantic Monthly Press: New York, 1981, lists in detail the entire
organizational structure for the Major Commands through Company level
for the U.S. Army and provides unit information for Special Warfare
components, the U.S. Air Force, U.S. Navy Construction, the Marine Corps
as well as Allied participants (Australia, New Zealand, Philippines,
Thailand, Republic of Korea and Vietnam). (APPENDIX 4)
An excerpt of
the Department of the Army Unit Citation and Campaign Credit Register is
attached in APPENDIX 5 to illustrate the use of this resource in further
examining the veteran’s Unit Citation and Campaign entitlement. It is
the case in the review of the DD Form 214 that a large proportion of
veteran’s having service, for instance in the Vietnam War, have not been
issued Unit Citations (most American military units in Vietnam received
foreign awards of the RVN Gallantry Cross with Palm Unit Citation and
the RVN Civil Actions Honor Medal, First Class); the average DD Form 214
reflecting Vietnam service does not show credit for either of these
awards. Meritorious Unit Commendations, Valorous Unit Awards, and
Presidential Unit Citations may also be omitted. It may come as a
surprise, then, when the service of a veteran who did not have the prima
facie awards listed in M21-1, ¶11.38 b.(1) may be annotated by a
Valorous Unit Award, a Presidential Unit Citation, RVN Cross of
Gallantry and RVN Civil Action Honor Medal or other Unit Citations and
Campaign Participation Credits. What the Citation and Participation
Credit Registers do is document unequivocally the entitlement of a
particular unit during a particular time (and collaterally, the veteran
who served in it) to award of such citations and decorations. Valorous
Unit Awards and Presidential Unit Citations have direct and positive
bearing on the prima facie presentation of in-service stressors.
C. NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION AT COLLEGE PARK
Once having
established the veteran’s unit, geographical location and time period
using military personnel records and Order of Battle information, one
can advise the veteran to initiate correspondence and/or research with
the National Archives and Records Administration in College Park, MD.
While the kinds of military records at the Archives rarely chronicle the
specific experiences of individual service members, they can and do
provide the kind of circumstantial evidence which documents the
occurrence of in-service stressors. Most of the unit records housed at
the Archives are paper and records research is done manually. There is
an advantage to this as the researcher can sit down with boxes of unit
records and carefully review each page for all nuances of combat. It is
not surprising to find amidst these unit records, documents that are
specific to the veteran both by name and incident. Regardless, these
records can provide the kind of arena certification of mortaring, rocket
attacks, incursions, enemy activity, and incidents which by there very
nature would prove to be distressing. (APPENDIX 6)
The following is a list of the kind of records one can
expect to locate at the Archives for the U.S. Army:
a) Daily Journals (Djs) - Djs are the
daily logs of a unit’s activities, normally maintained at hourly
intervals. Names, locations, times and specific incidents and operations
are recorded. Djs are most useful records for PTSD verification.
However, because these records can be quite voluminous, it is imperative
that the veteran narrow down the date spans with some specificity. On
the other hand, one may find in a broad review of the records the
necessary incidents of claim whether remembered or not.
b) Operational
Reports - Lessons Learned (OR-LLs) - These are
quarterly reports on a unit’s major operations and activities. They
often include unit locations, strengths, operations, results of
operations, casualties, statistical reports and recommendations for
improvement. They are created by units of battalion size and larger.
c) Combat Operations After Action Reports
(COAARs) - These reports are compiled after major operations and
describes the unit’s actions, strengths, weaknesses and recommendations
for improvement. Some COAARs are written in great detail, while others
are extremely sketchy.
d) Situation Reports (SITREPS) -
These are periodic narrative reports of brigade or division level
activities covering a 24 hour period. They are primarily a summation of
the Djs.
e) Unit and Organizational Histories -
These report on the general activities of Army units for a particular
period, normally six months or one year. The quality of these histories
varies greatly from unit to unit and may contain everything from
extremely detailed descriptions of battles to change of command and flag
raising ceremonies. The painting of the mess hall may merit as much
input as the building of bunkers for perimeter defense.
f) Order of Battle Records - These
contain information on an Army unit’s arrival, departure, location and
mission. Also included are higher headquarters, subordinate units and
unit assignments and locations during the tour.
g) United States Army-Vietnam (USARV)
Station List - This indicates where a unit’s mail was sent and the
parent organization of the individual units.
h) Military Assistance Command-Vietnam (MACV)
Strength Reports - These list units in Vietnam, their location, normally
province and town, and parent units.
i) Morning Reports (MR) DA Form 1 - These
records were daily accounting of personnel actions at the company level.
The individual’s status, by name, include: wounded in action (WIA),
killed in action (KIA), missing in action (MIA), transfers, arrivals,
and departures. It should be noted, however, that the Army ceased using
MRs in the early 1970s. You may also locate these records by
correspondence request to the National Personnel Records Center, St.
Louis MO.
j) Casualty Records - Such information as
the type of casualty, location, type of attack, cause and type of
injury, and possible prognosis is included. Other information includes
the individual’s unit, rank, Military Occupational Specialty (MOS), date
of casualty, date of report, individual making the report, witnesses,
and place of treatment. These records are arranged alphabetically by
last name. Complete last names are need and first and last names are
preferred.
k) Aircraft Accident, Incident and Combat
Crash Reports - These reports usually identify the unit involved, crew
members, witness reports, casualties involved, type of mission, and
cause of the crash. The incidents are arranged by date.
The Navy maintains its historical records
for ships in Deck Logs and Ship Histories which are compiled annually.
The Deck Logs record all unusual or significant events, such as fires,
accidents, injuries, or enemy action. Deck Logs also record standard
information such as ship’s speed, time and location. Entries are made a
minimum of once each four hours by the Officer of the Deck. Navy Shore
Station Histories and Ship Histories record events as they occur and are
filed on an annual basis. Personnel accountability is documented through
Muster Rolls which record the assignment of individuals to and from
ships and stations. It is very difficult, though, to determine the time
and locations where Navy members are on Temporary Additional Duty (TAD)
away from their home stations. Naval Military Personnel Command
maintains a centralized listing of all Naval combat casualties. The Navy
does not publish Combat After Action Reports, Daily Journals, Situation
Reports or Operational Reports-Lessons Learned.
The Air Force maintains its historical
records by major units in Quarterly Historical Reports (four segments
each calendar year). Each quarterly report is divided into functional
areas, such as supply, aircraft maintenance, civil engineering,
personnel, safety, operations, etc. Most of the information maintained
is of little use in terms of verifying PTSD claims. The Air Force
stopped maintaining Morning Reports in 1964; therefore, it is nearly
impossible to determine the specific daily status (sick in quarters,
hospitalized, leave, Temporary Duty (TDY), etc.) of its members after
that time. All Air Force casualty report information is maintained by
the Air Force Military Personnel Center, Randolph AFB, TX. The Air Force
does not publish Combat After Action Reports, Daily Journals, Situation
Reports or Operational Reports-Lessons Learned.
The Marine Corps maintains two primary groups of
historical records, the Command Chronologies and Report of Casualty Card
File :
a) Command Chronology - This is a
unit history prepared on a monthly basis during periods of conflict or
war. This document describes the unit’s mission, combat activity and
significant events. Enclosures to these documents include After Action
Reports and Daily Journals which chronicle company activities on a daily
basis. The Command Chronologies are the primary documents used to verify
specific stressing incidents cited in PTSD claims.
b) Report of Casualty Card File - This
file is prepared by Headquarters, U.S. Marine Corps upon notification of
the death or injury of a Marine (active duty, reserve, or retired).
These Casualty Cards give the date of event, status (killed, died of
wounds, wounded, etc.), extent of wounds, cause of death, geographical
area and unit of assignment at the time. These cards are considered to
be over 90% accurate for World War II, Korean and Vietnam Wars. Casualty
Cards are used to verify the status (WIA, Died of Wounds, KIA) of
individuals cited in claims and to verify the wounds of claimants.
A recent check with the National Archives
and Records Administration verified that the Archives does hold the
kinds of records described above on the U.S. Army, U.S. Air Force, U.S.
Navy, and U.S. Marine Corps from World War II, Korean War and the
Vietnam War. Additional information inquiries can be made to the
following addresses which may hold records of the Navy, Marine Corps and
Air Force:
a) Air Force Historical Research Agency -
AFHRA/RSQ, Building 1405, Maxwell AFV, AL 36112-6678 (334-953-5342):
Operational Narrative Reports (similar to the Army’s after-action
reports), unit histories (done by year).
b) U.S. Navy Historical Center - Building
57, Washington Navy Yard, Washington DC 20374-0571 has three branches.
The Operational Archives Branch (202-433-3170) holds operational reports
plans, command histories, and message files of the Commander-in-Chief,
Pacific (CINCPAC), Command, Naval Forces, Vietnam (COMNAVFORV), AND U.S.
Coast Guard commands. The Ship’s History Branch (202-433-3643) has
calendar year ships’ command histories. The Naval Aviation History
Branch (202-433-4355) holds naval air command histories for squadrons
and carrier air groups.
c) U.S. Marine Corps Historical Center -
Building 58, Washington Navy Yard, Washington DC 20374-0580
(202-433-3439): Operational Records of the Fleet Marine Force, Pacific;
III Marine Amphibious Force; 1st Marine Aircraft Wing; 1st and 3rd
Marine Divisions; and regimental and battalion-sized organizations.
D. NATIONAL PERSONNEL RECORDS CENTER
1. WHAT RECORDS ARE AT NPRC:
a) Individual military personnel records
compiled while the person was in military service. The official service
record contains documents related to enlistment, duty stations and
assignments, promotions, awards, training, evaluations, disciplinary
actions, and separation (DD Form 214 or equivalent).
b) Individual health records compiled
while the person was in military service. For most of the individual
personnel records at NPRC the Center also maintains a corresponding
health file, which includes records of induction and separation physical
examination, routine medical care when the patient was not admitted to a
hospital, and dental treatment.
c) Clinical (hospital inpatient) records.
These were compiled when the person was actually admitted to a hospital.
An overnight stay generally makes a patient an inpatient. To locate the
record of treatment, therefore, NPRC needs the name of the hospital and
year (month is even better) of admission, along with the name and
service/social security number of the service member or retiree.
d) Organization records. These are
records compiled by specific military units, such as morning reports,
roster, and special orders (NOTE: first check with the National Archives
at College Park). These personnel-related records can occasionally be
used to find information that would not have been kept in the individual
personnel folders.
e) Records of outpatient medical
treatment given at military medical facilities to dependents and
military retirees.
2. WHAT RECORDS ARE NOT AT NPRC
(APPENDIX 7):
a) Department of Veterans Affairs (VA)
records.
b) Pay Records. If available at all,
these would be at the various finance centers.
c) Records of veteran who have separated
but retain some sort of reserve status, whether active or inactive.
d) Records that are destined for NPRC,
but have not arrived yet.
e) National Guard Records. These are
usually filed with the Guard records in the individual states.
f) Health records compiled while on
active duty and sent to the Department of Veterans Affairs (VA) Records
Management Center (VARMC) or a VA Regional Office after separation from
active duty, discharge or retirement.
A listing of military personnel records
holdings as of September 30, 1997 by Record Groups, Dates, Cubic Feet
and Number of Jackets with Auxiliary Records grouping is contained for
general information in APPENDIX 8.
E. THE VIETNAM VETERANS
MEMORIAL
An additional source of unequivocal
certification of the those killed in action in the Vietnam War is the
Vietnam Veterans Memorial Directory of Names, published with the
memorial’s opening in 1982 by the Vietnam Veterans Memorial Fund, Inc.
(APPENDIX 9) This volume is no longer available. However, Jan C. Scruggs
and Joel L. Swerdlow have published the Directory of Names in To Heal a
Nation, The Vietnam Veterans Memorial and it is available in book
stores. (APPENDIX 10) These publications list the over 58,000 names of
soldiers killed in the Vietnam War and can be used to verify narrative
information given by veterans on colleagues killed in action This kind
of information is essential support data in the development of the PTSD
claim.
F. BUDDY STATEMENTS
Lay statements, or "Buddy Statements,"
are certifications of those who served with the veteran in sworn or
Affidavit testaments to geographical locations, times and events
experienced in the combat zone and are valuable sources of evidence in
documenting in-service stressors. How to find "Buddies" is another
matter. Rather than reinvent the wheel yourself in establishing the
resources needed to find long lost service mates, Lt. Colonel Richard S.
Johnson has published a volume entitled, How To Locate Anyone Who Is Or
Has been In The Military. This book provides 250 pages of locator
instruction using Social Security and Service Numbers on such varied
subjects as Active Duty personnel, Reserve and National Guard, Military
Records, Unit and Ship Rosters, Organizational Records and Histories,
State Government Records, and Nationwide locators. A copy of publication
and ordering information with Table of Contents is included at APPENDIX
11. Every advocacy agency should have a copy.
G. ADMINISTRATIVE AND BOARD APPLICATIONS TO
OBTAIN ENTITLED MEDALS AND DECORATIONS
In claims before the VA related to the
provisions of 38 C.F.R. Section 3.304(f), the following information may
lead to records changes to provide a resolution of the combat stressor
question when the representative finds that the applicant's military
record can support an award of the Combat Infantryman Badge (U.S. Army),
Combat Action Ribbon (U.S. Navy and Marine Corps) or other combat
decorations where such award has not been made through error,
negligence, or oversight.
1. U.S. ARMY:
a) Petition for administrative correction to records
not formally directed to the Army Board for Correction of Military
Records. Send request for the correction of administrative error
(failure to credit on DD Form 214 when Personnel Records document
entitlement, and other errors, or misattribution) to:
Chief, Verification Team
Personnel Service
Division, DARP-PAS-EVS
ARPERCEN
9700 Page Avenue
St.
Louis MO 63132-5200
The above petition may be sent directly,
or with the assistance of your Congressional Representative (the veteran
should direct any Congressional request personally). In cases where you
have sent the petition directly and no answer has been forthcoming in
4-6 months, refer the veteran to the Congressional Office for follow-up.
b) Application to the Army Board for the
Correction of Military Records. Two military membership organizations
will provide free representation in these matters:
Veterans of Foreign Wars
VFW Memorial
Building
200 Maryland Avenue, NE
Washington DC 20002
The American Legion
ATTN: Jerry Vanderberg
1608 K Street, NW
Washington DC 20006
202-861-2766
c) Direct application with credible
evidence to the Army Board for Correction of Military Records should be
made on DD Form 149 and sent to:
(FOR ACTIVE DUTY PERSONNEL)
Army Board for Correction of Military Records
Department of
the Army, 2nd Floor
1941 Jefferson Davis Highway
Arlington
VA 22202-4508
(FOR OTHER THAN ACTIVE DUTY
PERSONNEL)
CO, USARPERCEN
ATTN: DARP-VSA-A
St.
Louis MO 63132-5200
2. U.S. MARINE CORPS:
a) A petition for administrative changes to records not
formally directed to the Board for Correction of Naval Records should be
sent to:
Chief, Navy Liaison
Department of the Navy
Room 5409
9700 Page Avenue
St. Louis MO 63132
b) Petition to Awards Branch for recognition of awards
and/or decorations not formally directed to the Board for Correction of
Naval Records should be sent to (e.g., determination of entitlement to
the Combat Action Ribbon, etc.):
Head, Campaign & Service Awards Section
Military Awards Branch, Human Resources Division
Headquarters, U.S. Marine Corps
2 Navy Annex, MHM-3
Washington DC 20380-1775
c) The following organizations will provide free
representation before the Board for Correction of Naval Records:
The American Legion
ATTN: Ray Spencer
1608 K Street, NW
Washington DC 20006
202-861-2765
Veterans of Foreign Wars
VFW Memorial
Building
200 Maryland Avenue, NE
Washington DC 20002
d) Direct application with credible evidence to
the Board for Correction of Naval Records should be made on DD Form 149
and sent to:
Board for Correction of Naval Records
Department of the Navy
Washington DC 20380-5100
3. U.S. NAVY:
a) A petition for administrative correction of records
not formally directed to the Board for Correction of Naval Records
should be sent to:
Chief, Navy Liaison
Department of the Navy
Room 5409
9700 Page Avenue
St. Louis MO 63132
b) Petition to Awards Branch for recognition of awards
and/or decorations not formally directed to the Board for Correction of
Naval Records should be sent to (e.g., determination of entitlement to
Combat Action Ribbon, etc.):
Head, Awards and Special Projects Branch
Department of the Navy
Office of the Chief of Naval
Operations
2000 Navy Pentagon
Washington DC 20350-2000
c) The following organizations will provide free
representation before the Board for Correction of Naval Records:
Veterans of Foreign Wars
VFW Memorial
Building
200 Maryland Avenue, NE
Washington DC 20002
The American Legion
ATTN: Ray Spencer
1608 K Street, NW
Washington DC 20006
202-861-2766
d) Direct application with credible evidence to the
Board for Correction of Naval Records should be filed on DD Form 149 and
sent to:
Board for Correction of Naval Records
Department of the Navy
Washington DC 20370-510
4. U.S. AIR FORCE:
a) Petition for administrative changes to records not
formally directed to the Board for Correction of Air Force Records and
inquiries regarding awards and decorations should be addressed to:<
Air Force Military Personnel Center
(AFMPC/DPPPR)
550 C Street West, Suite 12
Randolph AFB, TX 78150-4714
b) The following organizations will provide free
representation before the Board for Correction of Air Force Records:
Veterans of Foreign Wars
VFW Memorial
Building
200 Maryland Avenue, NE
Washington DC 20002
The American Legion
ATTN: Jerry Vanderberg
1608 K Street, NW
Washington DC 20006
202-861-2766
c) Direct application with credible evidence to the
Board for Correction of Air Force Records should be filed on DD Form 149
and sent to:
Board for Correction of Air Force Records
ATTN: SAF/MIBR
550-C Street West
A Wing, Basement
Randolph AFB TX 78150-4722
APPENDIX 12 provides a list of writing addresses in
case of a problem or appeal for the five major Branches of Service. One
or more of these may be redundant with those given above.
A. WHY THIS CASE IS IMPORTANT
In Cohen v. Brown, the Court of Veterans
Appeals reversed a decision of the Board of Veterans' Appeals finding
Mr. Cohen's PTSD could not be service-connected because he did not
experience an event during his military service that was "sufficiently"
stressful to cause PTSD. Relying on the change in DSM-IV for the
assessment of PTSD discussed in Section III above, the Court stated that
the "sufficiency of a stressor is … now a clinical determination for the
examining mental health professional." Prior to this holding by the
Court, a VA adjudicator could, and usually did, reject a PTSD diagnosis
if the adjudicator believed that the stressful event experienced by the
veteran could not be of "sufficient severity" to trigger the disorder.
The Court also spelled out in detail in Cohen each of the elements a
veteran must meet in order to successfully claim compensation for PTSD.
This decision, in hand with the information given in Section 5
("Documentary Resources For Developing The 'Claimed In[-]Service
Stressor'") above, lightens the load on the veteran and assists the
representative in obtaining a successful resolution of claim.
B. HOW AND WHY A PTSD DIAGNOSIS BY A MENTAL
HEALTH OFFICIAL IS ADEQUATE
In Cohen the Court first acknowledged the
mental health profession's recent change to the criteria for assessing
PTSD. Because the VA has adopted these criteria as part of its
regulations, it is bound to follow the criteria when considering the
validity of a PTSD diagnosis. Chief Judge Nebeker summarized this
holding of Cohen, in his concurrence, this way:
Second, during the
pendency of this appeal, VA has adopted, through rulemaking or policy,
more current diagnostic criteria for PTSD, moving from those in the
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, third edition, to
the revised third edition [DSM-III-R], to the fourth edition {DSM-IV].
The revision to the diagnostic criteria of the DSM-IV, made by a new
regulation, has not changed 38 C.F.R. Section 3.304(f), the PTSD
regulation, but the new regulations amends 38 C.F.R. Section 4.125 and
Section 4.126. The Secretary has also replaced 38 C.F.R. Section 4.130
with a new section that specifically notes that the nomenclature
employed in the rating schedule is based on DSM-IV. However, VA
adjudicators also are guided by the VA ADJUDCATION PROCEDURE MANUAL,
M21-1 [hereinafter MANUAL M21-1]. The MANUAL M21-1 continues to apply
the criteria set forth in the DSM-III-R. If these provisions are deemed
not consistent in any respect, Mr. Cohen must receive the benefit of the
most favorable version. See Karnas v. Derwinski, 1 Vet.App. 308, 312-12
(1991).
Cohen v. Brown, 10 Vet.App. 128, 153
(1997). (APPENDIX 13)
Second, the Court discussed the significance
of the change in the criteria for a PTSD diagnosis. The change makes the
assessment of the PTSD stressor specific to the individual veteran.
Rather than having to show that the veteran
experienced a stressor
that would cause PTSD in the "average" person, all that needs to be
shown is that the stressor, whatever it was, actually caused PTSD in the
particular veteran. If the examining physician diagnosing PTSD believes
that the stressor experienced by the veteran caused the veteran to incur
a PTSD, the stressor is sufficient to establish the diagnosis, and
entitlement to service connection (if the other elements of claim are
met), even though the specific stressor may not have been of sufficient
severity to cause PTSD in any other person on the face of the planet.
Because this subjective determination can only be made by a doctor, or
other qualified mental health professional, the VA can no longer deny a
PTSD service-connection claim because of an inadequate stressor unless
there is independent medical evidence that the stressor was insufficient
to cause the veteran's PTSD. (bold-letter emphasis added)
Chief Judge Nebeker again:
Third, the
Court takes judicial notice of the effect of this shift in diagnostic
criteria. The major effect is this: the criteria have changed from an
objective ("would evoke … in almost anyone) standard in assessing
whether a stressor is sufficient to trigger PTSD, to a subjective
standard. The criteria now require exposure to a traumatic event and a
response involving intense fear, helplessness, or horror. A more
susceptible individual may have PTSD based on exposure to a stressor
that would not necessarily have the same effect on "almost anyone." The
sufficiency of a stressor is, accordingly, now a clinical determination
for the examining mental health professional.
Cohen, at 153.
Third, the Court found
that the VA's regulation that governs PTSD service-connection claims
does not contain any requirements for "sufficiency of stressors" or
"adequacy of symptomatology," the Court also said that a "clear"
diagnosis of PTSD by a mental health professional must be presumed by
the VA to be in accordance with the mental health profession's criteria
for establishing a diagnosis of PTSD, and thus valid. The Court said
that a "clear" diagnosis of PTSD is one that is "unequivocal."
Chief
Judge Nebeker stated:
Fourth, where, as in Mr. Cohen's case, there
has been an "unequivocal" diagnosis of PTSD by mental health
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 stressor (or stressors). In examining
these diagnoses, the adjudicators may reject a claim only upon finding a
preponderance of the evidence against a PTSD diagnosis, against the
occurrence of in-service stressor(s), or against the connection of the
present condition to the in-service stressor(s).
Cohen, at 153.
Finally, the Court said
that the VA may determine that a PTSD diagnosis is not valid. The
evidence may show that the diagnosis does not comply with the required
diagnostic criteria, or that it fails to link the PTSD to an inservice
stressor. Such a diagnosis can be rejected as "inadequate." However, the
report may be returned only for clarification. The claim itself may not
be denied altogether on these grounds.
Chief Judge Nebeker stated:
Fifth, the Board must return a diagnostic report to the regional office
(RO) for a further report by the examining doctor or other mental health
professional when the Board believes the report does not accord with
applicable DSM criteria. Here, the Board did not return the diagnostic
reports on Mr. Cohen for clarification, despite expressed doubts
regarding the adequacy of the PTSD diagnoses, specifically, the
sufficiency of the stressor noted in the reports. Moreover, the Board
did not discuss each of the three diagnostic reports in the record and
failed to provide an adequate statement of reasons or bases for
rejecting the examining medical professionals' conclusions that Mr.
Cohen has PTSD.
Cohen, at 153.
The Court also explained
that, to make a PTSD service-connection claim "well-grounded", and thus
trigger the VA's preliminary duty to assist the veteran develop the
evidence of record, the veteran need only submit medical evidence that
"generally" connects the veteran's "war experiences" with the PTSD
diagnosis. The mental health professional's opinion does not have to
link the PTSD to a specific stressor. A simple reference to the veteran
having had experiences in a war or during military service will suffice
to make the claim well-grounded. In the Cohen case, the Court stated
that he satisfied this requirement because the PTSD diagnoses in his
case stated that his PTSD was a result of his "war experiences."
However, to actually succeed in winning the compensation benefits, the
PTSD diagnosis must be specifically linked to the stressors the veteran
experienced. Mr. Cohen also satisfied this requirement because he
presented several "clear" diagnoses of PTSD which specifically stated
that his disability was as a result of stressors he experienced in
Vietnam.
And lastly, and this is the crux, the Court said that the VA
still has exclusive authority to determine whether the record contains
the necessary evidence to corroborate that the stressors the veteran
says he or she experienced actually occurred. One should be thoroughly
familiar with the Court's holding in Zarycki v. Brown, 6 Vet.App. 91
(1993), in assessing the VA's determination on this question. The Court
held in Zarycki:
Where it is determined, through recognized military
citations or other supportive evidence, that the veteran was engaged in
combat with the enemy and the claimed stressors are related to such
combat, the veteran's lay testimony regarding claimed stressors must be
accept as conclusive as to their actual occurrence and no further
development for corroborative evidence will be required, provided that
the veteran's testimony is found to be "satisfactory," e.g., credible
and "consistent with the circumstances, conditions, or hardships of such
service." 38 U.S.C.A. Section 1154(b); 38 C.F.R. Section 3.304(d), (f);
MANUAL M21-1, Part VI, para. 7.46(e)-(f); see Hayes, supra. Where,
however, the VA determines that the veteran did not engage in combat
with the enemy, or that the veteran did engage in combat with the enemy
but the claimed stressor is not related to such combat, the veteran's
lay testimony, but itself, will not be enough to establish the
occurrence of the alleged stressor. Id. Instead, the record must contain
service records which corroborate the veteran's testimony as to the
occurrence of the claimed stressor.
Zarycki v. Brown, at 98.
Most
important, in the event that the VA determines that the veteran did not
engage in combat, or that the veteran did engage in combat but the
claimed stressor did not happen in combat, the VA, in view of the
"reasons or bases" requirement of 38 U.S.C. Section 7104(d)(1), and the
controlling statutory and regulatory law regarding evidence of
stressors, perforce, must make specific findings of fact as to whether
or not the veteran was engaged in combat with the enemy and, if so,
whether the claimed stressor is related to such combat. Further the [VA]
must provide adequate reasons or bases for its finding, including a
clear analysis of the evidence which it finds persuasive or unpersuasive
with respect to that issue. See Gilbert. Zarycki, at
98.
A. WHY THIS CASE IS IMPORTANT
The VA has perennially argued that
certain military occupational specialties (MOSs) necessarily preclude a
veteran from having experienced combat stressors (administration clerks,
cooks, supply clerks, support and logistical personnel in general) and
even when general records document that an enemy attack occurred, for
example, at the geographical location established for the veteran by
records, if there are not specific records (records naming the veteran)
then the veteran's assertion that he participated is not believable. In
Suozzi, specifically, the VA refused to believe that a company clerk
would assist in casualty identification in the wake of a hostile attack
during which many casualties were taken (by records documentation). The
Court found significantly that believing that a company clerk would
assist in casualty identification from the general evidence "is a valid
inference to be drawn from the newly presented evidence."
B. VA's NARROW INTERPRETATION OF
"CORROBORATION"
In addition to the biased
interpretation of military occupational specialties the VA has also
insisted on a prejudicing interpretation of general records. They take
the position, for instance, that a general record documenting that a
veteran's company took heavy casualties while the veteran was assigned
has no meaning unless a specific record defines the veteran's own role
or proximity. The Court stated:
The Secretary argues that because the
veteran is himself not specifically named in the logs, they are
insufficient to corroborate his account of the claimed stressor. The
Secretary appears to suggest that Mr. Suozzi was somehow detached and
protected from the events that affected his company, but such a
conclusion is not supported by the record or by sufficient reasons or
bases in the Board's decision. See 38 U.S.C. Section 7104(d)(1); Gilbert
v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (Board decision must be
supported by adequate statement of reasons or bases). Neither the
Secretary nor the Board has offered an explanation as to why the
veteran's MOS, alone, would preclude him from being subject to the
described stressful events. Indeed, the Secretary would have the Court
read the record to glean that Mr. Suozzi played no role during or after
an event that wounded fifty-six and killed seventeen members of the
veteran's own company. That invitation must be rejected. Cf. Dizoglio v.
Brown, 9 Vet.App. 163, 166 (1996) ("engagement in combat is not
necessarily determined simply by reference to the existence or
nonexistence of certain awards or MOSs").
Suozzi v. Brown, at 310-311. (APPENDIX 14)
It is granted that the circumstances of engagement for Mr. Suozzi's
Company were exceptional to the standard which usually invokes that a
base was mortared or rocketed, but this case has provided a legal
holding by the Court proscribing the VA's narrowing of the definition of
corroborative evidence. The Court further stated:
The Secretary, in
insisting that there be corroboration of every detail including the
appellant's personal participation in the identifying process, defines
"corroboration" far too narrowly. The veteran has offered new and
independent evidence of stressful events and that evidence implies his
personal exposure.
Suozzi v. Brown, at 311.
Suozzi, then,
along with Cohen, is another important tool in reducing some of the
complexity of PTSD claims and allows the veteran and the representative,
with successful development of the generalized military record, to
prevail in the specific PTSD claim.
This manual has concerned itself with one
of the fields of development in PTSD claims, the certification of the
second element of the PTSD claim. To concern itself with the numerous
regulations, Court cases and manual provisions that apply to the total
prosecution and adjudication of a PTSD claim would require five times
the written length of this treatment. It is true that the issues of
well-groundedness, duty to assist, medical opinions versus lay opinions
of VA Board members, and adversarial adjudication are all equally as
important in the presentation of PTSD claims, but, when all else has
been said and done, if the second element, e.g., "credible supporting
evidence that the in[-]service stressor actually occurred" has not been
established, the polish and perfection of the rest will not amount to
much.
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