**Judicial Review Conference Call**

**April 3, 1997**

**OPENING REMARKS**

Good morning everyone.

This morning I\'ll begin with a little discussion of the redesign of
assessment documents. We will then have some information on a case
dealing with representation in Manila, and will follow that with the
latest on Tobacco use claims and a current court case dealing with PTSD.

**REDESIGN OF ASSESSMENT DOCUMENTS**

We are redesigning the decision assessment document (DAD) in an effort
to (hopefully) improve the product. We previously provided you with a
summary of the facts in a given case, the Court\'s analysis, our own
assessment and any recommendations for changes to regulations or
procedures. The redesigned product will try to provide you with the same
basic information but in a format that provides greater detail while
being easier to produce in a downsized environment.

The new DAD will consist of an electronically scanned copy of the actual
Court decision with a cover sheet setting forth the significant points
made in the decision and our recommendations for changes in regulations
or procedures. This format has the advantage of providing you with a
capsule summary of the important points in the case and what we feel
they mean in terms of the adjudication process, and there is the
additional benefit that if you are interested or need to know more about
the topic, the actual Court decision is there for you to read without
waiting for publication in West\'s Veterans Appeals Reporter or in ARMS.

The next DAD package we send out will be in this format, and I would
appreciate any comments or suggestions you may have that could improve
the product from your perspective. If you care to comment, please do so
by e-mail to the Judicial Review Staff. We will try to be as responsive
as we can to your comments.

***Navarro v. Brown*, 9 Vet. App. 192 (1996)**

In *Navarro*, the Court held that \"where an organization represents a
claimant, that organization must be recognized and the individual in the
organization specifically undertaking the representation must be
accredited.\" In this case, the representative was the DAV, an
organization which does not have an accredited representative located
anywhere in the Philippines. The veteran had designated a local
Philippine address as the address of record for purposes of receiving
correspondence. Since this was an address at which there was located no
accredited individual of a recognized organization, the DAV\'s national
appeals office was deemed to be the veteran\'s representative for the
purpose of BVA\'s compliance with their statutory mailing requirement.
In order to ensure that we are meeting our statutory obligation to
provide copies of notice and development letters to a claimant\'s
accredited representatives of a national service organization, we sent
letters to each organization listed on VA Form 21-22. These letters were
sent March 24, 1997, and asked each organization to provide the name and
address of any accredited representative of that organization physically
located in the Philippines. Should there be no such representative, each
organization was asked to designate an address where copies of notice
and development letters originating in the Manila RO are to be mailed.
If an organization designates an accredited representative at a
particular address, that is where the copies will be sent. If no
designation is made, copies will be sent to the national headquarters.

The Manila RO has advised that claimants sometimes appoint a State
Service Organization as their representative, even though he or she may
never have resided in that state. Manila has had a recurring problem
with sending copies of correspondence to service organizations in care
of a regional office and having the RO return the copy to Manila with a
3230 attached stating the file is under Manila\'s jurisdiction. We
believe that one of two possibilities are occurring. First, the letters
are being delivered to the State or National Service Organizations\'
offices at the RO. Those organizations are asking the Adjudication
Division for the claims files. At that point, the clerks are taking the
letters and returning them to Manila. The other possibility is that the
copies are being delivered by the mailroom directly to the Adjudication
Division. A clerk looks for the folder, determines that it is in Manila,
and then returns the copies to that office rather than delivering the
copies to the accredited representative. It is essential that all
Adjudication personnel and Service Organization representatives
understand that all of these claims files are in the Manila RO. The
copies of notice and development letters must be delivered to the
Service Organization representatives for their records. If the
accredited representative wishes to review the claims file, your office
should request a temporary transfer of the file from Manila. If a State
Service Organization does not have representatives call-located at your
office, or if you need further clarification about this issue, please
contact the Adjudication Officer, VARO Manila, via E-mail.

Are there any questions concerning this problem?

Okay next up we will talk about Tobacco use claims and PTSD.

**Claims Based on Tobacco Use**

You, no doubt, are aware that an all-station letter concerning \"Claims
Involving Disabilities or Death Based on Tobacco Use During Active
Service\" was issued January 28, 1997. Paragraph 11 of that letter
directed regional offices to immediately begin reviewing claims listed
on their tobacco logs. You are also aware that we solicited questions
concerning the all-station letter and scheduled a satellite broadcast
concerning processing these claims. We did not, however, issue any
instructions requesting regional offices to delay implementing action on
tobacco claims pending that broadcast. The satellite broadcast has been
temporarily postponed because of a need for further guidance on the
issue of whether nicotine addiction constitutes a \"disease.\" Earlier
this week, the Director, Compensation and Pension Service and other
representatives of the Service met with the General Counsel and the
Under Secretary for Health. It was agreed that the General Counsel will
request a medical opinion from VHA on this issue. We are hopeful that we
can get that opinion, and a precedent opinion from GC on this subject,
within the next month. In the meantime, please continue to review the
claims on your logs for well groundedness; request any evidence
necessary to well ground the claim; and, if and when the claim is
determined to be well grounded, execute our duty to assist as stated in
the all-station letter, including obtaining a medical opinion from a VA
examiner.

Should you complete all necessary development action on a claim,
including obtaining a medical opinion prior to our receipt of the
requested VHA medical opinion and GC precedent opinion, please review
the claim to determine if the issue of nicotine addiction is a critical
factor in the adjudication of the claim. If it is, you cannot proceed
with the adjudication of that claim. If nicotine addiction is not a
critical factor, proceed to adjudicate the claim on the merits. We will
be providing further guidance as soon as we get these opinions.

Are there any questions?

***Cohen v. Brown*, No. 94-661**

On March 7, 1997, the Court issued a precedent decision in *Cohen v.
Brown*. This lengthy decision dealt with the issue of post-traumatic
stress disorder (PTSD), and, particularly, with the requirements for a
well-grounded claim for service connection for PTSD. Citing its decision
in *Caluza v. Brown*, 7 Vet. App. 498 (1995), *aff\'d per curium*, 78
F.3d 604 (Fed. Cir. 1996) (table), the Court held that for a PTSD claim
to be well grounded, there must be medical evidence of current
disability; evidence of an in-service stressor; and medical evidence of
a nexus between service and the current PTSD disability.

Under 38 C.F.R. § 3.304(f), service connection for PTSD requires three
elements: (1) a current, clear diagnosis of PTSD; (2) credible
supporting evidence that the claimed in-service stressor actually
occurred; and (3) medical evidence of a causal nexus between current
symptomatology and the specific claimed stressor. With respect to the
first element of a successful PTSD claim, that of a current medical
diagnosis, section 3.304(f) neither specifies the criteria for a clear
diagnosis of PTSD nor makes reference to the Diagnostic and Statistical
Manual of Mental Disorders (DSM). When this case was first appealed in
1989, 38 C.F.R. § 4.125 had adopted the nomenclature of the 1980 third
edition of DSM (DSM-III); however, the DSM was revised in 1987 and again
in 1994 (DSM-IV). On 10/8/96, VA amended that portion of the rating
schedule pertaining to mental disorders. The new rule made no change in
the specific PTSD regulation, section 3.304(f), but revised sections
4.125 and 4.126, and replaced section 4.130 with a new section adopting
DSM-IV as the basis for the nomenclature of the rating schedule for
mental disorders.

Despite the regulatory amendments, the M21-1 PTSD provisions still
specifically refer to DSM-III-R. (Now Pt. VI, par. 11.38a). To the
extent that the manual provisions are more favorable than the CFR
regulatory provisions, they are for application; to the extent that the
manual contains added requirements that are more restrictive than the
PTSD regulation, they cannot be applied in a manner adverse to the
veteran. Because section 3.304(f) is specific as to PTSD and the DSM
provisions in the CFR are generalized as to mental disorders, the DSM
criteria cannot be read in a manner that would add requirements over and
above the three primary elements set forth in section 3.304(f). In order
to give primacy to section 3.304(f) provisions, which do not require
findings concerning the sufficiency of a stressor or the adequacy of
symptomatology to support a diagnosis as do the DSM provisions, a clear
PTSD diagnosis by a mental health professional must be presumed to have
been made in accordance with the applicable DSM criteria as to both the
adequacy of the symptomatology and the sufficiency of the stressor. Only
where there is a medical opinion as to the first and third PTSD elements
do the DSM criteria come directly into play for purposes of
adjudication. At that point, the applicable DSM criteria (as to the
symptomatology or stressor requisites) may be used by the Board, but
only as the basis for a return of the examination report to the RO for
clarification or further examination. For example, if the discussion of
the stressor in the examination report does not fit within the
description of a PTSD stressor under the applicable DSM, that would
provide a basis for the BVA to return the examination report to the RO
for clarification as to how there can be a clear diagnosis of PTSD.

BVA cannot use the DSM provisions as a basis for rejecting the
veteran\'s favorable medical evidence as to the sufficiency of a
stressor or the adequacy of the symptomatology. This can only be done by
a contrary medical opinion. Even if, on return, the original examiner
does not provide clarification in terms of the applicable DSM criteria,
the BVA would have the option of returning the examination again, or
seeking independent medical evidence as to the PTSD diagnosis. DSM-IV
criteria are no longer based solely on a general, anticipated response
to a traumatic event but are individualized (geared to a specific
individual\'s actual response to that traumatic event). Stated another
way, under DSM-III, there was an objective requirement that the
psychologically traumatic event or stressor be one that would \"evoke
significant symptoms of distress in almost anyone.\" That has been
deleted in DSM-IV and has been replaced by the subjective requirements
of having been \"exposed to a traumatic event\" in which \"the person
experienced, witnessed, or was confronted with an event or events that
involved actual or threatened death or serious injury, or a threat to
the physical integrity of self or others\" and \"the person\'s response
must have involved intense fear, helplessness, or horror.\" While it was
proper for the Board to apply the objective standard, the subjective
standard in requires a medical opinion.

Because the Board doubted the adequacy of the PTSD diagnoses in the
*Cohen* appeal, specifically, the sufficiency of the claimed stressors,
the Board was required to return the examination for clarification.
Because the sufficiency of stressors and the adequacy of symptomatology
are medical questions under DSM-IV, the BVA is not free to reject
uncontradicted, unequivocal medical diagnoses of record. The Court held
that, on the existing record, the undisputed diagnoses of PTSD establish
the current disability as a matter of law. This, however, does not end
the inquiry, as the diagnosis only satisfies one element for service
connection to be awarded. There must be evidence establishing the
occurrence of the stressor and medical evidence establishing a nexus.
The Board failed to make a finding as to the credibility of the
veteran\'s sworn testimony describing duties while in Vietnam and failed
to articulate clearly whether it found the veteran to have engaged in
combat. The Court noted that there is a significant deficiency in
section 3.304(f) and the M21-1 in that they do not expressly provide
that a combat veteran\'s lay testimony alone may establish an in-service
stressor pursuant to 38 U.S.C. § 1154(b). That is, once you have made a
factual determination that a veteran engaged in combat with the enemy,
his or her own testimony is sufficient to establish the occurrence of a
combat-related stressor. If it is determined that the veteran did not
engage in combat with the enemy, then the veteran\'s own testimony is
not sufficient to establish the occurrence of a stressor and additional
evidence is needed. Once it is established that there is a diagnosis of
PTSD and a stressor, then you must make a specific finding as to whether
the medical reports indicate a nexus between current symptoms and
in-service stressful events.

We are reviewing the regulations and manual provisions at this time.

Are there any questions on this?

Muskogee RO:

Cannot translate: \[As we understood it, the question was essentially,
"Can service in Vietnam, by itself, constitute a stressor?"\]

C&P Service:

No, I don\'t believe that was the intent. DSM-IV would not automatically
result in general service in Vietnam being an adequate stressor.

Chicago RO:

I have a question on the smoking related issue. Am I correct that you
are saying that we have everything we need right now to go ahead and
adjudicate these smoking claims, with the exception being is nicotine
addiction a disease. Is that correct?

C&P Service: Yes, that is correct. \[But see Fast Letter 97-35
attached.\]

Chicago:

It leaves me some what at a loss because I thought we were awaiting
further instructions from Central Office on how to adjudicate these
claims.

C&P Service:

The only thing we have left to present to you is the satellite broadcast
which is going to be a discussion and perhaps somewhat of an elaboration
on the guidance letter that was issue on January 28, 1997. The only
thing we are waiting on now before we go on the air with that telecast
is some decision here as to the role that nicotine dependence can play
in these claims. We have not anticipated issuing any additional
instructions.

Chicago:

Being submitted here in Chicago, in response to an inquiry from Central
Office that wanted questions pertaining to smoking claims, we are
estimating that we probably submitted about 15 to 20 questions, which we
have not received an answer to yet. I am also assuming that there are
other stations that submitted a like number of perhaps identical
questions. It would will help us greatly if we had the answers to those
questions before we proceeded.

C&P Service:

I think what he said is to proceed with development of the case to
include trying to assist the person in establishing a well-grounded
claim, getting an examination conducted, and an opinion expressed by the
examiner. We expect that we would havethe Under Secretary for Health\'s
opinion on whether or not nicotine dependency is a disease within a
month and we also expected that it would probably take you longer than
that to gather up all the evidence you're going to have gather anyway
before you make a decision. So the point of our discussion was continue
to develop the cases and get your medical opinions from the VA hospital
and then, if you still need the anticipated guidance on nicotine
dependence, you'd have to wait at that point. But I guess you\'re
suggesting that you can\'t adjudicate until you have the answers to all
those questions which, by the way, were used as the basis for setting up
the format for the telecast. Alot of the questions, I will say, were
really asking us, in Central Office, to engage in rulemaking which we
are forbidden to do. That of course will be stated on the air and all
the questions were really appreciated and went quite a ways to help us
develop the format for the training. But I think most of the answers
that don\'t involve rules are in that January 28th letter. \[But see
Fast Letter 97-35 attached.\]

Chicago:

Again the only thing I can say is I am at a loss because if there's not
going to be any rulemaking from Central Office then we\'re going to have
individual rules set by 50 plus different regional offices across the
country. I myself was not confident with the adjudication of smoking
claims based upon the information that's been presented at this point in
time, so I am looking forward with great anticipation to this telecast.

C&P Service:

The telecast may help you resolve some of the mental processes that have
to go on in deciding the case, but I think you can still proceed at this
point to develop the evidence you need to eventually make those
decisions.

And that\'s all were saying today.

St Louis RO:

Isn't it safe to say we can go ahead to do the development basically
like you said a couple of times, but we're still not going to grant any
case until we get the final instructions about nicotine addiction?
Right? Do you know of any case we would be able to go ahead and grant
service connection?

C&P Service:

I was thinking about that this morning. I suspect that if you have, as
an example, an individual with twenty-five years of service who started
smoking in year one of that service and developed lung cancer two years
after his discharge, so he is outside the presumptive period, my guess
is that whatever Uner Secretary for Health says about nicotine
dependence would not have a bearing on that case. I'd grant that one in
a heartbeat.

St Louis:

Good example.

C&P Service:

I think that the opinion anticipated from the Under Secretary for Health
is going to help us with the cases where the individuals smoked in
service forty years ago and for the forty years since service and have
now come down with a disease.

Togus RO:

If we developed, which we have already, and the veteran has not
presented a well-grounded claim, can we go ahead and deny those? Am I
correct?

C&P Service:

That\'s correct. If you've reviewed the case and advised the person what
they need under today\'s rules and today's caselaw to present a
well-grounded claim and given them the opportunity, and they have not
responded, you certainly are free to deny that as not well-grounded.

Thank you.

\[See attached copy of Fast Letter 97-35 for the most current
information on tobacco use claims.\]

Other questions please we have no additional formal presentations to
make.

Not Identified:

Do we have any tentative date for the broadcast presentation.

C&P Service:

Not at this point. We will set a date for the broadcast as soon as we
get the opinions that we need and then assimilate them into the
broadcast format.

Thanks.

Buffalo RO:

Can I ask a question on PTSD? If you have a veteran whose combat is not
verified, and he makes statements regarding being exposed to combat and
the examiner accepts that and makes the diagnosis of PTSD, you\'re
saying we have to send that back until the examiner declines to make the
diagnosis of PTSD?

C&P Service:

No, the examiner has satisfied one of the requirements for service
connection and that is a current diagnosis of PTSD. It's now up to us to
satisfty one of the other requirements and that is \"did the event
actually occur.\"

Buffalo:

You\'re saying that was a medical opinion and not a rating board
opinion.

C&P Service:

That\'s the diagnosis that requires the medical opinion, and the
sufficiency of the claimed stressors and adequacy of the symptoms are
presumed to have been present when the examiner made the diagnosis, but
then after that you have two other elements that you have to satisfy,
one of which is\" did a stressor actually occur.\" And if you made a
determination, for example, that the veteran did not serve in combat and
that is the basis of his claimed stressor, then he hasn\'t met that
element.

Buffalo:

We can still deny a case in which there was a diagnosis of PTSD if we
determine that the other elements weren't present?

C&P Service:

That\'s correct.

Muskogee:

Would you make some comments on denying a claim for PTSD as being not
well-grounded? There\'s some thought here that we always thought that
PTSD was well-grounded.

C&P Service:

PTSD is like any other claim for service connection. It requires the
three elements: current diagnosis, an event in service and the medical
nexus between the two. If you don\'t have those then the claim is not
well-grounded, if all three of those are not met.

Thank you.

White River:

Regarding PTSD stressors, is it more important to emphasize that the
claimed stressor happened to the veteran. For example, sometimes
they\'ll claim that a friend of theirs was killed and that this is their
stressor, learning of the event. It didn't happen to them, they just
learned about it.

C&P Service:

It seems to me that that is the judgment of the examining physician
under the terms of DSM-IV. If that event was responded to by that
individual in such a way that the doctor can validly diagnose PTSD, then
that stressor is accepted as a matter of law. Now you just have the
problem of obtaining evidence to corroborate that, the fact that it
happened. But the sufficiency of the stressor, that was one of the main
points in the *Cohen* case, the sufficiency of the stressor is no longer
the rating board's judgment. That has been given over, because of the
DSM-IV, that has been given over to the medical professionals.

Any other questions?

Los Angeles:

With regard to 1154(b) and 3.304(f) if the veteran has alleged combat as
a stressor and has evidence of combat, combat action ribbon, purple
heart, medal of valor, is that still sufficient proof of a service
related stressor?

C&P Service:

Yes.

Thank you.

C&P Service:

Those citations, by the way, are not the only way to establish the fact
that the veteran engaged in combat with the enemy. There could as well
be other evidence, testimony, other documents, that could lead you to
make a finding that the veteran engaged in combat with the enemy, and
once you make that finding, the veteran's testimony is sufficient to
establish the combat related stressor.

DAV, Service Officer:

Is the VA contemplating at least getting some reimbursement from the
tobacco companies for any of those service connection claims granted?

C&P Service:

Not right now.

Are there any other questions. I\'ll get in one more call.

St. Paul:

How is combat defined?

C&P Service:

I \'m not sure the court has addressed that issue yet. That is not
defined. I guess that is an interesting question, isn\'t it? That will
be an adjudicative determination, one that you have to make based on the
facts in a particular case. I realize that is not as clean cut an answer
as most of you would like, but I think that\'s the answer that we have
to give at this point.

Anything else.

Okay a lot of good questions today. I want to thank you for attending.
And listen, when you do get the next DAD package, and it\'s in the new
format, please take a look at it. As I said before, I would like to know
what you think, if it\'s helpful in any way from your perspective,
because this redesign effort is a continuing effort. There is still one
more package coming in the old format, so I guess please look out for
the new format, and when you get it, let me know what you think. Thanks
for calling in.

In Reply Refer To: 213 (97-35)

Director (00/21/27)

All VBA Offices and Centers

Subj: Interim Actions on Tobacco Use Claims

1\. The following guidance is being offered to clarify any
misconceptions or conflicting statements on the handling of tobacco use
claims prior to our receipt of medical and legal opinions relating to
nicotine dependence and the conduct of nationwide training on such
claims by satellite broadcast.

2\. Most tobacco use claims have been pending for some time, and they
have been pending while the Court of Veterans Appeals was developing its
view of well-groundedness. Initially, we asked that you review the
claims on your logs for well-groundedness. If they were not
well-grounded by today\'s standards, you were asked to notify the
claimants of what was lacking to make their claims well-grounded. If
they did not respond with the necessary evidence within 60 days, those
claims could be denied as not well-grounded.

3\. Once the claims were determined to be well-grounded, you were
required to execute your \"duty-to-assist\" obligations. At a minimum
that would include a request for a VA examiner to express an opinion
about the relationship between in-service tobacco use and the claimed
disability or death. After the claim has been fully developed, you must
decide whether to adjudicate that claim on the merits. If the evidence
clearly indicates that the claim should be granted, you should proceed
to adjudicate that claim. Otherwise, you should suspend adjudication
pending the conduct of satellite broadcast training.

4\. We are currently waiting for a medical opinion from the Under
Secretary for Health on whether nicotine dependence is a ratable disease
for compensation purposes. That opinion is necessary before the General
Counsel issues a legal opinion on the appropriateness of paying
compensation based on claims involving nicotine dependence. These
opinions, in turn, will form a critical part of the satellite broadcast
training. Therefore, in claims that cannot clearly be granted, it would
be the most prudent course to defer adjudication of such claims until
training has been conducted.

Director

Compensation and Pension Service