**This version includes the errata dtd 21Sep04-e**

**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No]{.smallcaps}. 02-1012

[Denver Sizemore, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided September 3, 2004 )

*Sean Kendall*, of Boulder, Colorado, was on the brief for the
appellant.

*Tim McClain*, General Counsel; *R. Randall Campbell*, Assistant General
Counsel; *Brian B. Rippel,* Deputy Assistant General Counsel; and *John
D. McNamee*, all of Washington, D.C., were on the brief for the
appellee.

Before IVERS, STEINBERG, and GREENE, *Judges.*

STEINBERG, *Judge*: Veteran Denver Sizemore (the appellant), through
counsel, seeks review of a June 6, 2002, Board of Veterans\' Appeals
(BVA or Board) decision that denied his claim for Department of Veterans
Affairs (VA) service connection for post-traumatic stress disorder
(PTSD). Record (R.) at 1-12. The appellant and the Secretary each filed
a brief, and the appellant filed a reply brief. This appeal is timely,
and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and
7266(a). For the reasons set forth below, the Court will vacate the June
2002 BVA decision and remand the matter to the Board for further
development and readjudication.

**I. Relevant Background**

The veteran served on active duty in the U.S. Army from August 1966 to
February 1969, including service in Vietnam in an artillery unit from
January 1967 to January 1968. R. at 16, 294. He served with C Battery,
3rd Battalion, 18th Artillery, as a cannoneer. R. at 294. Service
medical records (SMRs) indicated that he suffered \"\[i\]nternal
derangement\" of the left knee after having fallen off an armored
personnel carrier while on perimeter guard duty on May 12, 1967. R. at
471, 475, 497. An SMR noted that he had \"caught \[his\] foot in \[the\]
latch as he fell and internally rotated (twisted) \[his left\] knee
before he hit the ground.\" R. at 497. According to his SMRs, on May 18,
1967, he was hospitalized at the 249th General Hospital in Japan and on
July 24, 1967, he resumed his duty as a cannoneer with the C Battery
unit. R. at 294 (DA Form 20 -- record of assignments); 504-07 (SMRs).

A February 1987 VA examination report included a diagnosis of the
veteran as having, inter alia, a \"\[n\]ervous condition which has been
present since military service.\" R. at 122. The report noted the
following: \"\[The veteran\] cannot function very well when he is around
a lot of people. He has trouble sleeping. He does not mention any
specific Vietnam experiences which are a problem to him, if further
evaluation is needed for this, he will have to have a psychiatric
examination.\" R. at 122. The record on appeal (ROA) contains no record
of another examination for the next six years. *See* R. at 122-92.

In February 1993, the veteran filed a claim with a VA regional office
(RO) for service connection for, inter alia, a nervous disorder. R. at
184. VA medical records for that month noted that the veteran complained
of, among other things, flashbacks and nightmares and his belief that
they were related to his service in Vietnam. R. at 192, 195. He was
hospitalized in a VA facility in April 1993 for an \"\[a\]djustment
disorder\", and VA hospital records noted a discharge diagnosis of,
inter alia, \"features of \[PTSD\]\". R. at 267-69. On April 29, 1993,
the VARO denied service connection for a nervous condition. R. at 239,
241-42.

On August 30, 1994, the veteran filed a claim for service connection for
PTSD. R. at 244. The following month, the RO requested additional
information from the veteran regarding the incidents in service that he
felt led to PTSD. R. at 247. In October 1994, he submitted, in support
of his PTSD claim, a statement as follows:

> On or about the 24^th^ of July 1967 at 1:00 AM in the morning we
> w\[ere\] struck by Viet Kong \[sic\] mortar fire. There w\[ere\] 17
> wounded. Sgt Ward and Spc. 4 Prior. I don\'t know or forgot the\[ir\]
> first names. There w\[as\] fire all over. \[Three\] of our guns were
> knocked out\[;\] every thing was destroyed. About \[the\] 8^th^ of
> April 1967 we were under another attack about 80 miles north of
> Chu-Lui. I don\'t recall the L\[anding\]-Z\[one;\] both these attacks
> took place at the same L-Z. There were 4 of my unit hurt but I don\'t
> recall the\[ir\] names. We were all in the 1st of the 25th infantry
> division heavy art\[illery\] company.
>
> \[I\]n May 1967 I don\'t recall the date\[,\] we were struck again by
> mortar fire\[.\] I was knocked off an American Patrol Carrier about
> 10:30 at \[\]night. The next morning I was sent to Cam Ron \[sic\]
> Bay. I stayed there for about 3 days and then \[was\] sent to North
> Camp Drake hospital in Tokyo Japan\[, where\] I stayed 63 day\[s\] for
> my left knee\[.\] After the 63 days in the hospital I went back to
> Viet Nam at our Camp Base which was Chu-Lui. I stayed there for 22
> days and then went back to my unit.
>
> . . . I feel what I \[did\] in Viet Nam really tore my world and my
> life apart. I was a gunner on a\[n\] 8\" \[s\]elf\[-p\]ropel\[l\]ed
> gun and also a 175 \[s\]elf\[-p\]ropel\[l\]ed \[gun\]. I know in my
> heart I killed a lot of people in Viet Nam but I don\'t really care.
> It\'s on my mind all the time but it\'s something I have to live with.

R. at 260-61.

In January 1995, a VA psychiatrist, following a VA compensation and
pension (C&P) examination, diagnosed the veteran as having \"moderately
severe\" PTSD. R. at 298-300. At that time, the veteran noted that he
had been nervous since he was in the service. R. at 298. He stated that
he was a gunner in a self-propelled howitzer and a guard, and related
that he was usually on reconnaissance missions, had seen casualties,
including the death of an acquaintance, was subject to close hits, and
was knocked off his gun carrier and hurt his left knee. R. at 299. In a
May 1995 C&P examination report, a VA psychologist, Robert Tureen, Ph.D,
examined the veteran and concluded that there was \"no evidence on which
to make a diagnosis of \[PTSD\]\" and that \"\[m\]ost of the problems
reflected in the responses to test material suggest more of a
characterological disturbance\". R. at 304. The report of that
examination related that the veteran had stated that he had been \"blown
off\" a vehicle by a mortar shell and had seen numerous people killed
while he was in Vietnam and that this still bothers him today. R. at
302-03.

In August 1995, in response to the RO\'s request for information
concerning the veteran, the U.S. Army Environmental Support Group (ESG)
informed the RO that both Chu Lai and Landing Zone English were attacked
in 1967, but that, in order for the ESG to provide further research
concerning specific combat incidents, the veteran must provide
additional information, including specific dates, type, and location of
incidents, full names of casualties, and unit designations. R. at 306.
The ESG noted that the RO had not included the veteran\'s Vietnam tour
dates or his completed unit designation to the company level. R. at 307.
The ESG also noted that morning reports can be used to verify daily
personnel actions such as wounded in action, killed in action, and
missing in action, and that such reports could be obtained from the
National Personnel Records Center (NPRC) in St. Louis, Missouri. R. at
306. The ESG further noted that \"\[s\]tressors such as Mr.
Sizemore\[\'s\] killing many people or his being knocked off a military
vehicle during an enemy attack are seldom found in the combat records.\"
*Ibid*.

In September 1995, the RO denied service connection for PTSD. R. at
385-86. The RO decision noted that the evidence was inadequate to
establish that a stressful experience sufficient to cause PTSD actually
occurred. *Ibid*. The veteran filed a Notice of Disagreement (R. at 390)
in December 1995, and the RO issued a Statement of the Case (SOC) in
March 1996. R. at 406. At a VA hearing in May 1996, the veteran
testified under oath. R. at 421-31. In August 1996, he underwent a third
VA C&P examination for his mental disorder. R. at 450. The examining VA
psychiatrist diagnosed the veteran as having PTSD and noted the
following: \"The patient does seem to have \[PTSD\] which seems to be
service related.\" R. at 452. The RO issued a Supplemental SOC (SSOC) in
December 1996. R. at 454.

In June 1997, the RO requested further information from the ESG (renamed
the \"U.S. Armed Service Center for Research of Unit Records\"
(USASCRUR)) in order to verify the veteran\'s claimed stressors, and the
RO provided more detailed information about the veteran\'s unit and
alleged stressor incidents. R. at 462. In December 1997, the USASCRUR
responded, enclosing \"Operational Reports of Lessons Learned\" (ORLLs)
for the period November 1, 1966, through January 31, 1968. R. at 517.
(The ORLLs showed the locations, missions, and combat activities of
units, including Battery C; although the reports listed casualty
statistics, no names were provided. *Ibid.*) The USASCRUR also enclosed
a morning report dated June 25, 1967, for the veteran\'s Battery C unit,
and pointed out that the ORLLs and morning reports did not document a
combat action occurring on July 24, 1967. *Ibid*. The USASCRUR noted,
however, that the reports did document that on June 24, 1967, an enemy
attack resulted in Battery C\'s sustaining one killed in action and 49
wounded in action. R. at 517 (USASCRUR cover letter), 537 (ORLL for
period ending July 31, 1967), 567-69 (morning report dated June 25, 1967
). The USASCRUR noted that morning reports can be ordered from the NPRC
in St. Louis, Missouri. R. at 517.

The ORLL for the quarterly period beginning February 1, 1967, and ending
April 30, 1967, noted, inter alia, that the veteran\'s unit had
participated in Task Force (TF) OREGON and that his unit
\"reinforc\[ed\] the \[artillery\] fires\" of another Battalion. R. at
523-24. The ORLL for the period between May 1 and July 31, 1967,
described operations on specific days. R. at 536-37. For example, it
described the June 24, 1967, incident in which the veteran\'s unit was
attacked resulting in one casualty and many wounded in action. R. at
537. Of the eleven other operations described during that period, none
included the receipt of enemy fire by the veteran\'s unit. *See* R. at
536-37.

In a November 1998 C&P examination report by a VA psychiatrist, the
veteran was diagnosed as having, among other things, a \"probable
personality disorder\". R. at 794. Although it did not include a
diagnosis of PTSD for the veteran, the report noted that he had stated
that \"he probably killed eight to ten enemy soldiers\" and \"saw eleven
of his friends killed, mostly by mortars but also by small arms fire\"
and that the veteran noted that \"the worst thing that happened to him
was that he had to engage and kill enemy soldiers, but he felt that it
was justifiable by the fact that it was a combat situation and it was
\'either them or me\'.\" R. at 792. The report noted that the veteran\'s
medical history was positive \"for left\[-\]knee trouble secondary to
being \'blow\[n\] off an APC\' in Vietnam.\" *Ibid.*

In January 1999, the RO issued another SSOC. R. at 797-800. In his
Substantive Appeal to the Board, the veteran stated: \"The \[SSOC\]
states the combat was on 6/24/67 and that is correct as I was returned
to the unit two days before the attack.\" R. at 821. In an August 6,
1999, decision, the Board denied service connection for PTSD. R. at
835-42. The Board concluded that the veteran did not engage in combat
with the enemy and that there was no credible supporting evidence
confirming the claimed stressors. R. at 836. The veteran appealed the
1999 Board decision to this Court (No. 99-1989), which vacated that
decision and remanded the matter to the Board for readjudication in
light of 38 U.S.C. § 5103(a), as amended by the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106‑475, § 3(a), 114 Stat.
2096, 2096-97, and this Court\'s opinion in *Holliday v. Principi*,
14 Vet.App. 280, 286 (2001), *overruled in part by* *Kuzma v. Principi*,
341 F.3d 1327, 1329 (Fed. Cir. 2003) (citing to *Dyment v. Principi*,
287 F.3d 1377, 1385 (Fed. Cir. 2002), and *Bernklau v. Principi*, 291
F.3d 795, 806 (Fed. Cir. 2002)). R. at 920-21 (Court order dated April
27, 2001). Before the Board decision now on appeal, VA\'s General
Counsel issued on October 18, 1999, a precedent opinion that, among
other things, (1) defined the phrase \"engaged in combat with the
enemy\" as used in 38 U.S.C. § 1154(b); and (2) explained what evidence
should be considered satisfactory proof that a veteran engaged in combat
with the enemy. VA Gen. Coun. Prec. 12-99 (Oct. 18, 1999) \[hereinafter
G.C. Prec. 12-99\].

In the June 2002 BVA decision here on appeal, the Board denied service
connection for PTSD, after finding that (1) by a preponderance of the
evidence, the veteran did not engage in combat with the enemy while
serving in Vietnam (R. at 6), (2) the record contained no credible
supporting evidence that confirmed any of the veteran\'s claimed
stressors (R. at 2), and (3) the record contained no diagnosis of PTSD
related to verified stressors (*ibid.*). In making its findings, the
Board relied on G.C. Prec. 12-99. The Board also concluded that VA had
complied with the VCAA, that the record was complete and adequate for
appellate review, and that no further action was necessary to meet the
requirements of the VCAA. R. at 3.

**II. Contentions of Parties**

The appellant urges the Court to reverse as clearly erroneous the
Board\'s finding that he did not engage in combat with the enemy and to
remand the matter to the Board to apply the combat presumption of
section 1154(b). Brief (Br.) at 15-18. He argues that a unit may engage
in combat by \"\[s\]helling the enemy with thousands of rounds of
artillery\". *Id.* at 12. He notes that combat is defined as \"active
fighting in a war\" and argues that he was actively fighting by firing
his weapon. *Id.* at 17 (quoting [Merriam-Webster\'s Ninth New
Collegiate Dictionary]{.smallcaps} 262 (9th ed. 1990)). He contends
that, contrary to the Board\'s finding, counterfire is not a necessary
element of the definition of combat. *Id*. at 17. The appellant also
argues that the Board failed to provide an adequate statement of reasons
or bases for its conclusion that he did not engage in combat with the
enemy. Br. at 18. He contends that the Board \"completely ignored\" his
testimony that he had engaged in combat with the enemy. Br. at 19
(citing to R. at 260). He further argues that VA failed to assist him by
not attempting to verify his claimed in-service stressors (Br. at 13,
19-20) and failed to comply with the section 5103(a) notice provisions
enacted by the VCAA (Br. at 22).

The Secretary states that he accepts the appellant\'s statement of
facts. Br. at 2 (citing Appellant\'s Br. at 1-12). He asserts that this
appeal turns on whether the appellant was a combat veteran and argues
that the appellant had not engaged in combat because he was never
subjected to enemy fire. Br. at 4-5, 12. He contends that the Board
provided an adequate statement of reasons or bases in support of its
decision and that the appellant\'s account of his Vietnam experiences
are contradicted by official records. Br. at 12. The Secretary further
contends that any additional section 5103(a) notice would not assist the
veteran. Br. at 13. He also argues that if the Court should find that
the VCAA requirements have not been met, the Court should hold that this
noncompliance was nonprejudicial error. Br. at 14.

**III. Analysis**

***A. Applicable Law and Regulations***

To support a claim for service connection for PTSD, a claimant must
present evidence of (1) a current diagnosis of PTSD; (2) credible
supporting evidence that the claimed in‑service stressor actually
occurred; and (3) medical evidence of a causal nexus between the current
symptomatology and the claimed in‑service stressor. 38 C.F.R. § 3.304(f)
(2003); *see Cohen (Douglas) v. Brown*, 10 Vet.App. 128, 138 (1997);
*see also* 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2003) (Schedule
of ratings for mental disorders -- PTSD). Where a current diagnosis of
PTSD exists, the ***sufficiency*** of the claimed in‑service stressor is
presumed. *See Cohen*, 10 Vet.App. at 144. However, credible evidence
that the claimed in‑service stressor ***actually occurred*** is also
required. 38 C.F.R. § 3.304(f). Specifically, 38 C.F.R. § 3.304(f)
provides, in pertinent part:

> Service connection for \[PTSD\] requires medical evidence diagnosing
> the condition in accordance with \[38 C.F.R.\] § 4.125(a) . . . ; a
> link, established by medical evidence, between current symptoms and an
> in‑service stressor; and ***credible supporting evidence that the
> claimed in‑service stressor occurred***. Although service connection
> may be established based on other in‑service stressors, the following
> provisions apply for specified in‑service stressors as set forth
> below:
>
> \(1\) If the evidence establishes that the veteran engaged in combat
> with the enemy and the claimed stressor is related to that combat, in
> the absence of clear and convincing evidence to the contrary, and
> provided that the claimed stressor is consistent with the
> circumstances, conditions, or hardships of the veteran\'s service, the
> ***veteran\'s lay testimony alone may establish the occurrence of the
> claimed in‑service stressor***.

38 C.F.R. § 3.304(f) (emphasis added). (Although § 3.304(f) was amended
during the pendency of this claim at VA, the
credible‑supporting‑evidence requirement at issue here has remained
unchanged. *See* 67 Fed. Reg. 10,332 (Mar. 7, 2002); 64 Fed. Reg.
32,807, 32,808 (June 18, 1999).) The \"engaged in combat\" provision of
this regulation was derived from 38 U.S.C. § 1154(b), which provides:

> In the case of any veteran who engaged in combat with the enemy in
> active service with a military, naval, or air organization of the
> United States during a period of war, campaign, or expedition, the
> Secretary shall accept as sufficient proof of service\[\]connection of
> any disease or injury alleged to have been incurred in or aggravated
> by such service satisfactory lay or other evidence of service
> incurrence or aggravation of such injury or disease, if consistent
> with the circumstances, conditions, or hardships of such service,
> notwithstanding the fact that there is no official record of such
> incurrence or aggravation in such service, and, to that end, shall
> resolve every reasonable doubt in favor of the veteran.
> Service\[\]connection of such injury or disease may be rebutted by
> clear and convincing evidence to the contrary. The reasons for
> granting or denying service\[\]connection in each case shall be
> recorded in full.

38 U.S.C. § 1154(b); *see* *Arms v. West*, 12 Vet.App. 188, 194 (1999);
*Cohen*, 10 Vet.App. at 145-46.

Accordingly, if the veteran engaged in combat and the claimed stressor
is combat related, the veteran\'s lay testimony alone generally is
sufficient to establish the occurrence of the claimed in‑service
stressor. 38 C.F.R. § 3.304(f). If, however, the claimed stressor is not
combat related, its occurrence must be corroborated by credible
supporting evidence. *See Cohen*, 10 Vet.App. at 142. (citing §
3.304(f)). When a claim for PTSD is based on a noncombat stressor, \"the
noncombat veteran\'s testimony alone is insufficient proof of a
stressor.\" *Moreau v. Brown*, 9 Vet.App. 389, 396 (1996). Corroboration
does not require, however, \"that there be corroboration of every detail
including the appellant\'s personal participation in the identifying
process.\" *Suozzi v. Brown*, 10 Vet.App. 307, 311 (1997); *see* *also*
*Pentecost v. Principi*, 16 Vet.App. 124, 128 (2002) (holding that Board
\"erroneously insisted that there be corroboration of the veteran\'s
personal participation\").

The Board\'s finding of noncombat status is a finding of fact that the
Court reviews under a \"clearly erroneous\" standard of review pursuant
to 38 U.S.C. § 7261(a)(4). *See Moreau*, 9 Vet.App. at 395. Whether a
veteran has submitted sufficient corroborative evidence of his or her
claimed in‑service stressors is also a factual determination that is
reviewed under this standard. *Pentecost*, 16 Vet.App. at 129. Under
this deferential standard, if there is a \"\'plausible\' basis\" in the
record, \"\'viewed in its entirety\'\", for the factual determinations
of the BVA, the Court cannot overturn them. *Gilbert v. Derwinski*,
1 Vet.App. 49, 52-53 (1990) (quoting *Anderson v. City of Bessemer
City*, 470 U.S. 564, 573-74 (1985)); *see also* *Mariano v. Principi*,
17 Vet.App. 305, 313 (2003).

Moreover, the Secretary is required by 38 U.S.C. § 5107(b) to consider
all information and lay and medical evidence of record, and, under the
section 5107(b) \"equipoise standard\", to find for the claimant unless
\"a fair preponderance of the evidence is against the claim\[ant\'s
position\].\" *Gilbert*, 1 Vet.App. at 54-55; *see also* *Mariano*, 17
Vet.App. at 313-17 (reversing two BVA findings of fact as \"clearly
erroneous application\[s\] of the section 5107(b) equipoise standard\").

The Board, too, must consider all evidence of record and consider, and
discuss in its decision, all \"potentially applicable\" provisions of
law and regulation. *Schafrath v. Derwinski*, 1 Vet.App. 589, 593
(1991); *see* 38 U.S.C. § 7104(a); *Charles v. Principi*, 16 Vet.App.
370, 373 (2002); *Weaver v. Principi*, 14 Vet.App. 301, 302 (2001) (per
curiam order); *Sanden v. Derwinski*, 2 Vet.App. 97, 100 (1992). The
Board is also required to include in its decision a written statement of
the reasons or bases for its findings and conclusions on all material
issues of fact and law presented on the record; that statement must be
adequate to enable an appellant to understand the precise basis for the
Board\'s decision, as well as to facilitate informed review in this
Court. *See* 38 U.S.C. § 7104(d)(1); *Allday v. Brown*, 7 Vet.App. 517,
527 (1995); *Gilbert*, 1 Vet.App. at 56-57. To comply with this
requirement, the Board must analyze the credibility and probative value
of the evidence, account for the evidence that it finds persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the claimant. *See Caluza v. Brown*, 7 Vet.App.
498, 506 (1995), *aff\'d per curiam*, 78 F.3d 604 (Fed. Cir. 1996)
(table); *Gabrielson v. Brown*, 7 Vet.App. 36, 39-40 (1994); *Gilbert*,
*supra*.

***B. Application of Law to Facts***

The Board recognized that the veteran had been diagnosed with PTSD and
determined that the case turned on whether he had either engaged in
combat during service or experienced a verifiable in-service stressor.
R. at 5. In determining whether the appellant \"engaged in combat with
the enemy\", the Board relied on a VA General Counsel (GC) precedent
opinion, G.C. Prec. 12-99, and stated that it requires that \"the
veteran have taken part in a fight or encounter with a military foe or
hostile unit or instrumentality.\" R. at 6. The Board found that \"the
preponderance of the evidence is against a finding that the veteran
participated in combat with the enemy.\" R. at 6. The Board stated that
\"\[a\]lthough the veteran was assigned a combat-related \[military
occupational specialty\], there is no evidence that he participated in
combat, within the meaning of the General Counsel opinion.\" R. at 6.
Specifically, the Board stated:

> While the records obtained by USASCRUR for the period of the
> veteran\'s assignment to Battery C, 3rd Battalion, 18th Brigade
> indicate that the unit engaged in numerous direct combat support
> missions, it ***received*** no counterfire or enemy incursions at any
> time the veteran was present. . . . Most clearly, while the veteran\'s
> unit was the target of an enemy mortar and recoilless rifle attack on
> 24 June 1967, the veteran was then hospitalized in Japan.

R. at 6 (emphasis added). Again referring to G.C. Prec. 12-99, the Board
stated that \"\[t\]he mere fact that the veteran served as a cannoneer
cannot constitute a finding that the veteran engaged in combat when the
record contains no ***ordinary*** indications of combat involvement.\"
R. at 11 (emphasis added).

In arguing that the Board provided an adequate statement of reasons or
bases for its determination that the appellant did not engage in combat,
the Secretary asserts that \"a determination . . . whether \[the
appellant\] engaged in combat -- when it is clear that he fired
artillery but the enemy did not fire at him -- would not require . . .
an exhaustive statement of reasons or bases.\" Br. at 11. He maintains
that the uncontested fact that the appellant was not subjected to enemy
fire is determinative of the combat issue. Br. at 4, 5. The appellant,
however, contends that he did engage in combat with the enemy because he
fired artillery rounds into enemy positions. Br. at 15.

The Court concludes that the Board erred to the extent that its
determination that the appellant had not engaged in combat was based on
the sole criterion of the appellant\'s not having received fire from the
enemy. The Board erred insofar as it based that determination on G.C.
Prec. 12-99. That opinion does not state that the meaning of the phrase
\"engaged in combat with the enemy\" requires that a veteran have
received fire. The GC opinion defines \"engaged in combat with the
enemy\", as used in 38 U.S.C. § 1154(b), as requiring the veteran to
have \"personally participated in events constituting an actual fight or
encounter with a military foe or hostile unit or instrumentality.\" G.C.
Prec. 12-99 at ¶ 4. Significantly, that opinion also stated the
following: \"Evidence that the veteran participated in ***attacking
or*** defending an attack of the enemy would ordinarily show that the
veteran had \'engaged in combat,\' but that general description would
not be exhaustive of circumstances which may, in individual cases, be
found to constitute engagement in combat.\" *Id*. at ¶ 6 (emphasis
added). The Court notes that the GC opinion drew this conclusion from an
August 17, 1932, VA Administrator\'s Decision No. 100, from which G.C.
Prec. 12-99 quoted the following: \"\[T\]he phrase \'incurred in
combat,\' as used in the Act of June 30, 1932, would generally include
\'a disability incurred as a direct result of injury caused by an
instrumentality of war while \[the veteran\] was actually engaged in
***attacking***, defending ***or*** sustaining an attack of the
enemy.\'\" G.C. Prec. 12-99 at ¶ 5 (emphasis added). Indeed, this
definition was part of the background for the enactment of section
1154(b) in 1941. *See* G.C. Prec. 12-99 at ¶ 5; *see also* *Arms*,
12 Vet.App. at 197 (noting legislative history for section 1154(b)).
This GC precedent opinion was binding on the Board, 38 U.S.C. § 7104(c);
38 C.F.R. § 14.507(b), but the Board does not appear to have followed
it.

Although the Board correctly recognized that, pursuant to that GC
opinion, the determination whether a veteran was in combat must be made
on a case-by-case basis, the Board disregarded the above GC opinion
explanation as to participation in \"attacking\", which could cover the
appellant\'s circumstances. The ORLL for the February 1 to April 30,
1967, quarter showed that the appellant\'s unit had been responsible for
shooting artillery fire into enemy areas and that his unit killed
numerous Viet Cong soldiers. R. at 526-28. Specifically, the ORLL noted
that during the night of February 18-19, Battery C, firing in support of
another battalion, \"received credit for 25 V\[iet\]C\[ong\] KIA
\[(killed in action)\].\" R. at 526. That ORLL also identified how the
veteran\'s unit was \"\[o\]rganiz\[ed\] for \[c\]ombat\" in connection
with Battery A and Battery B of his artillery unit for various dates in
February and April. R. at 526-27. The ORLL further noted that in support
of TF Oregon (April 17-April 30, 1967), the artillery fire was
responsible for, among other things, the following: (1) 61 structures
and huts destroyed; (2) one base camp destroyed; (3) two bridges
destroyed; (4) 21 boats sunk; (5) 101 \"KIA (probable)\"; and (6) 4
wounded in action. R. at 527. The ORLL noted that the veteran\'s Battery
C guns fired more than 12,000 rounds during this three-month reporting
period. R. at 528.

The Board\'s conclusion as to whether the appellant was engaged in
combat was thus based on an incomplete statement of reasons or bases.
*See* *Cohen* and *Gilbert*, both *supra.* Accordingly, the Court will
vacate the Board decision and remand the matter to the Board for it to
readjudicate whether the appellant engaged in combat. In this regard,
the Board must address the meaning of the term \"attacking\" as used in
G.C. Prec. 12-99 and explain whether the evidence, including the
appellant\'s account, the ORLLs and the morning reports, supports a
determination that he had been involved in combat. *See* *Gaines v.
West*, 11 Vet.App. 353, 359 (1998) (finding error where, in analyzing
whether appellant had engaged in combat, Board partly relied on lack of
award of medals showing combat service but neglected to address, inter
alia, appellant\'s sworn testimony that he had engaged in combat);
*Suozzi*, 10 Vet.App. at 310-11 (concluding that corroboration of
claimed in-service stressor does not require corroboration of every
detail, including appellant\'s personal participation in identifying
process); *see also* *Pentecost*, *supra*.

The Court notes that, contrary to the appellant\'s assertions, the Board
did consider his sworn lay testimony in its determination that he had
not engaged in combat. The Board considered his testimony for both the
combat and the stressor-corroboration issues. R. at 7, 9, 11. In its
discussion of whether the appellant experienced an in-service stressor,
the Board stated: \"In the absence of appropriate military citations or
other evidence sufficient to establish that the veteran engaged in
combat with the enemy, the Board ***has also considered the veteran\'s
testimony*** and all corrobative evidence.\" R. at 7 (emphasis added).
The Board noted that the appellant \"provided further descriptions of
his alleged stressors at VA examinations and in his personal hearing
testimony\" and described some of the testimony from the hearing in May
1996. R. at 8; *see* R. at 421-31 (May 1996 hearing transcript). The
Board also described the veteran\'s description of stressors in his
October 1994 statement; the August 1995 ESG letter; and VA examination
reports from January 1995, May 1995, and November 1997. R. at 7-10.
Based on that evidence, the Board concluded that there was no
independent evidence to corroborate under § 3.304(f) that any claimed
in-service stressor had actually occurred. The Board also concluded that
\"based on the evidence, the record does not include sufficient evidence
to establish that the veteran engaged in combat with the enemy during
service \[so as\] to invoke \[section\] 1154(b) and the presumption for
combat service.\" R. at 9. Nevertheless, as discussed above, a remand is
required based on the Board\'s failure to provide an adequate statement
of reasons or bases in light of the GC opinion\'s conclusion regarding
the meaning of the term \"engaged in combat\".

In readjudicating on remand the appellant\'s claim for service
connection for PTSD, if the Board again determines that the appellant
did not engage in combat, the Board will be required to apply, inter
alia, the provisions of 38 C.F.R. § 3.304(f) and specifically those
pertaining to noncombat veterans. *See Moran v. Principi*, 17 Vet.App.
149, 155 (2003). In this regard, as to the appellant\'s contention that
VA failed to fulfill its duty to assist him in the verification of his
alleged stressors, the Court disagrees with the Board\'s determination
that VA made all reasonable efforts to verify the veteran\'s claimed
PTSD stressors. R. at 3. To the contrary, the Court concludes that the
appellant was not advised adequately by VA as to the types of
information that may help to verify his claimed in-service stressors.
*See* 38 U.S.C. § 5103A. In particular, at the May 1996 VA hearing (R.
at 421‑31) VA failed to advise the appellant that he could submit
corroboration in the form of \"buddy statements\" as to some of the
occurrences that he alleged were in-service stressors. *See* 38 C.F.R.
§ 3.103(c)(2) (1995) (providing that VA hearing officer must, inter
alia, suggest submission of evidence that claimant \"may have overlooked
and \[that\] would be of advantage to the claimant\'s position\");
*Dixon v. Derwinski*, 3 Vet.App. 261, 263 (1992) (citing *Garlejo v.
Derwinski*, 2 Vet.App. 619, 620‑21 (1992) (concluding that VA breached
duty to assist appellant by neglecting to inform him that he could ask
fellow soldiers to write letters in support of his claim)); *see also*
*Moran*, 17 Vet.App. at 159 (citing *YR v. West*, 11 Vet.App. 393,
397-99 (1998) (concluding that, in PTSD case, \"credible supporting
evidence\" is not limited to service department records, but can be from
any source and holding that Board\'s failure to discuss written
statement of appellant\'s sister was prejudicial error)); *Cohen*,
10 Vet.App. at 145 (noting that occurrence of stressor had been
established by Board\'s acceptance of corroborative statement of
veteran\'s comrade as to exposure to frequent mortar and rocket
attacks).

At the May 1996 hearing, the appellant testified under oath that he was
a gunner whose unit provided artillery support for infantry units
stationed in the field and that when his unit moved from one landing
zone to another \"we would have to go in and secure the area our own
self.\" R. at 422. He explained: \"It was very difficult. I mean there
were a lot of, a lot got killed there. We never had anybody to go in
front of us. We had to go in by ourselves and do it.\" R. at 422. He
further testified that on July 24, 1967, while he was with the 25th
Infantry Division, his firebase came under attack and 17 individuals
were killed, including his first sergeant, who was the battery
commander. *Ibid*. The Court notes that a buddy statement may
corroborate, for example, the appellant\'s claimed participation on
July 24, 1967; any doubt about his having functioned as part of
artillery support for infantry units; and/or his statement concerning
his having been blown off a vehicle and injuring his knees (R. at
260-61, 302-03, 422-23).

The Court also concludes that there is some merit to the appellant\'s
argument that VA failed to assist him by not attempting to verify
whether servicemen Prior or Ward were casualties during the Vietnam
Conflict (one of his claimed stressors (Br. at 13, 19-20)). In its
decision, the Board noted that the appellant had described an attack in
July 1967 in which \"his First Sergeant \[Ward\] and a Specialist
\[Prior\] were killed\" and that his attorney had suggested that VA
should attempt to verify the deaths of these servicemen. R. at 9. The
Board, however, determined that because \"the alleged \[July 1967\]
attack itself was not verified, verification of deaths alleg\[ed\] to be
due to that attack is not necessary.\" R. at 9. Under the duty to
assist, the Secretary is required to assist a claimant to obtain
relevant records. 38 U.S.C. § 5103A(c)(3) (requiring Secretary to assist
claimant in obtaining, among other things, records \"held by any Federal
department or agency that the claimant adequately identifies and
authorizes the Secretary to obtain\"); *see* 38 C.F.R. § 3.159(c)(3)
(2003). The Court concludes that if the appellant\'s assertion regarding
the deaths was that his ***knowledge*** of the deaths was a stressor,
then VA had a duty to assist the appellant in attempting to verify the
deaths. If, however, the appellant\'s assertion is that he
***witnessed*** their deaths, then VA has an obligation to attempt to
verify the deaths only if there is evidence that the appellant was
present when those deaths allegedly occurred. In addition, the Court
notes that although the appellant concedes that he was a patient at the
249th General Hospital in Japan from May 18, 1967, to July 23, 1967 (Br.
at 3), it is possible that if the deaths of servicemen Ward and/or Prior
occurred on a date other than June 24 (the date identified in the ORLLs
as the date on which the appellant\'s unit was attacked), that may
indicate that the appellant\'s unit was under attack on a date not
mentioned in the ORLLs and morning reports; if so, VA had a duty under
the statute and regulation to attempt to obtain any relevant documents
in this regard. Accordingly, if combat status is not found on remand,
the Board must seek to clarify the basis for this asserted in-service
stressor and then take appropriate action.

On remand, if the Board determines that the appellant engaged in combat
or that there is credible supporting evidence that the claimed
in-service stressor occurred, then VA is to provide a current
examination of the appellant. *See* 38 U.S.C. § 5103A; *Green (Victor)
v. Derwinski*, 1 Vet.App. 121, 124 (1991) (concluding that \"fulfillment
of the statutory duty to assist here includes the conduct of a thorough
and contemporaneous medical examination\"). The Court notes that the
most current VA examination is dated in November 1998 and contains
notations by the VA psychiatrist that the appellant\'s claimed stressors
have not been substantiated*.* As to the claimed stressors, the examiner
stated the following:

> \[The veteran\'s\] stressors in Vietnam apparently have not been
> substantiated and \[al\]though it is likely that he was involved in
> some combat activities, it seems a bit unusual that an artillery man
> would have personally killed eleven enemy soldiers unless they were
> being over\[\]run. In an action of that nature, I think \[it\] would
> probably have resulted in either some award being given to him or at
> least some documentation being discoverable with respect to that
> unit\'s heavy combat activity. . . . When I asked him if he directly
> observed \[his 11 friends killed\], he states that he did directly
> observe it. Again, that seems to be a bit of either an exaggeration or
> a horrible experience which should again be discoverable through the
> records.

R. at 795. To the extent that the examining psychiatrist is expressing
an opinion on whether the appellant\'s claimed in-service stressors have
been substantiated, that is a matter for determination by the Board and
not a medical matter. *Cf.* *Mariano*, 17 Vet.App. at 312 (noting that
it is impermissible for VA to obtain medical opinion if a purpose for
undertaking such additional development was to obtain evidence against
appellant\'s case); *Moreau*, 9 Vet.App. at 396 (concluding that
credible supporting evidence of in‑service stressor cannot consist
solely of medical statement of VA examining psychiatrist that related
veteran\'s PTSD to events experienced in service and that expressly
found veteran\'s recitation of facts to be credible); *see* *also*
*Cohen*, 10 Vet.App. at 145 (citing *Moreau*, *supra*) (noting that
opinion by mental health professional based on postservice examination
of veteran cannot be used to establish occurrence of stressor). A new VA
examination would remove whatever taint there may be from this
psychiatrist\'s overreaching in his report. *Cf*. *Colayong v. West*, 12
Vet.App. 524, 534-35 (1999) (concluding that medical opinion had been
obtained by tainted process where engagement letter from RO that led to
medical opinion contained questions that were \"fatally flawed\" in that
they suggested answer and limited field of inquiry by expert, and
ordering that new medical opinion be obtained on remand).

The Court notes that on remand the Board\'s determinations on the
questions of combat status and corroboration of stressors (if needed)
must be made consistent with the equipoise standard of 38 U.S.C. §
5107(b), and the appellant\'s claim is to be denied on the merits only
if the evidence preponderates against the claim. *See* *Gilbert,* 1
Vet.App. at 54; *see also* *Mariano*, 17 Vet.App. at 313-17.

**IV. Conclusion**

On the basis of the foregoing analysis, the ROA, and the parties\'
pleadings, and having \"take\[n\] due account of the rule of prejudicial
error\" under 38 U.S.C. § 7261(b)(2), the Court will vacate the June
2002 Board decision and remand the matter for expeditious further
development and issuance of a readjudicated decision supported by an
adequate statement of reasons or bases, *see* 38 U.S.C. §§ 1110,
1154(b), 7104(a), (d)(1); 38 U.S.C. §§ 5103A, 5107; 38 C.F.R.
§§ 3.103(c)(2), 3.159, 3.304(f), 4.130, DC 9411; *Fletcher*
*v. Derwinski*, 1 Vet.App. 394, 397 (1991), all consistent with this
order and in accordance with 38 U.S.C. § 7112 (as added by the Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(b), 117 Stat. 2651,
2673) (requiring Secretary to \"take such actions as may be necessary to
provide for the expeditious treatment by the Board of any claim that is
remanded to the Secretary by the Court\"); *see Vargas-Gonzalez v.
Principi*, 15 Vet.App. 222, 225-30 (2001) (holding that section 302 of
Veterans\' Benefits Improvements Act of 1994, Pub. L. No. 103‑446,
§ 302, 108 Stat. 4645, 4658, predecessor of section 7112, applies to all
elements of a claim remanded by the Court or Board), and in accordance
with all applicable law and regulation. *See Allday*, 7 Vet.App. at
533‑34. On remand, the VCAA will apply. *See* 38 U.S.C. 5100‑5103,
5103A, 5106, 5107; *Fortuck v. Principi*, 17 Vet.App. 173, 181 (2003);
*Charles*, 16 Vet.App. at 374; *Quartuccio v. Principi*, 16 Vet.App.
183, 187 (2002); *see also* *Pelegrini v. Principi*, 18 Vet.App. 112
(2004). Also, on remand, the appellant will be free to submit additional
evidence and argument on the remanded claims, and the Board is required
to consider any such evidence and argument. *See Kay v. Principi*, 16
Vet.App. 529, 534 (2002). A remand by this Court or by the Board confers
on an appellant the right to VA compliance with the terms of the remand
order and imposes on the Secretary a concomitant duty to ensure
compliance with those terms. *See Stegall v. West*, 11 Vet.App. 268, 271
(1998). A final decision by the Board following the remand herein
ordered will constitute a new decision that, if adverse, may be appealed
to this Court only upon the filing of a new Notice of Appeal with the
Court not later than 120 days after the date on which notice of the
Board\'s new final decision is mailed to the appellant. *See Marsh
v. West*, 11 Vet.App. 468, 472 (1998).

VACATED AND REMANDED.