Citation Nr: 0947379 Decision Date: 12/15/09 Archive Date: 12/24/09 DOCKET NO. 07-10 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a chronic heart disorder to include coronary artery disease claimed as a result of Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had certified active service from May 1962 to May 1966 and additional duty with the Wyoming Army National Guard. The Veteran served in the Republic of Vietnam. He was reported to have participated in combat. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Atlanta, Georgia, Regional Office (RO) that denied service connection for depression, PTSD and a heart disorder to include coronary artery disease. In October 2009, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. The issue of service connection for a chronic heart disorder to include coronary artery disease is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. The Veteran has advanced contentions on appeal that the Board interprets as an informal claim for a total rating for compensation purposes based on individual unemployability. It appears that the RO has not had an opportunity to act upon the claim. Therefore, the issue is referred to the RO for action as may be appropriate. FINDINGS OF FACT 1. The transcript of the October 2009 hearing before the undersigned Acting Veterans Law Judge sitting at the RO reflects that the Veteran expressly withdrew his claim of entitlement to service connection for depression. 2. PTSD has been shown to have originated during active service. CONCLUSIONS OF LAW 1. The issue of the Veteran's entitlement to service connection for depression has been withdrawn and no allegation of error of fact or law remains. 38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). 2. PTSD was incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Depression At the October 2009 hearing before the undersigned Acting Veterans Law Judge sitting at the RO, the Veteran expressly stated that he wished to withdraw his claim of entitlement to service connection for depression. A Veteran may withdraw his substantive appeal in writing at any time prior to the Board's promulgation of a decision. 38 C.F.R. § 20.204 (2009). The Board finds that the Veteran has effectively withdrawn his April 2007 substantive appeal. Therefore, the Board concludes that no allegation of fact or law remains as to the issue of service connection for depression. In the absence of such assertions, the appeal should be dismissed. 38 U.S.C.A. § 7105(d) (5) (West 2002). II. PTSD In the decision below, the Board grants service connection for chronic PTSD. This action represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2009); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, 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. 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) (2009). The service treatment records are negative for PTSD but his service personnel records state that he was stationed at George Air Force Base, California, from November 13, 1962, to July 20, 1964; he served in the Republic of Vietnam; and he participated in combat from October 14, 1965, to November 24, 1965, while in Vietnam. A December 21, 1962, USAF Accident/Incident Report (AF Form 711) conveys that a pilot was killed when his F-104C fighter aircraft crash landed at George Air Force Base, California. A January 2005 VA mental health clinic treatment record notes that the Veteran complained of Vietnam-related nightmares and a startle reaction. He presented a history of having been a fighter aircraft crew chief while in Vietnam and witnessing "enemies being cut to pieces by machine guns." A provisional diagnosis of PTSD was advanced. A January 2005 VA psychiatric evaluation notes that the Veteran presented a history of witnessing both a fatal aircraft crash during active service prior to going to the Republic of Vietnam and a "massacre of Vietnamese people" while in the Republic of Vietnam. The Veteran was diagnosed with chronic PTSD and not otherwise specified depression. An August 2006 VA treatment record states that the Veteran was diagnosed with PTSD and a not otherwise specified depressive disorder. A May 2007 VA treatment record clarifies that the Veteran was "diagnosed with Depressive Disorder NOS and PTSD from combat trauma during the Vietnam War." In his October 2009 Statement in Support of Claim for Service connection for PTSD (VA Form 21-0781), the Veteran conveyed that he had observed the crash of a F-104 fight aircraft in December 1964; assisted in the recovery of the pilot's remains; was stationed at Da Nang Air Force Base, Republic of Vietnam, when the base was attacked by North Vietnamese forces; and witnessed the killing of approximately 50 enemy soldiers within the base's perimeter. At the October 2009 hearing before the undersigned Acting Veterans Law Judge sitting at the RO, the Veteran clarified that he believed that the fatal aircraft crash at George Air Force Base, California, had occurred in 1962. He stated that his treating VA doctors diagnosed him with PTSD based upon his witnessing the 1962 aircraft crash and his combat experiences. The Board has reviewed the probative evidence of record including the Veteran's testimony and written statements on appeal. The Veteran served in the Republic of Vietnam. His service personnel records note that he participated in combat and was at George Air Force Base at the time of the fatal aircraft crash. Treating VA physicians have diagnosed the Veteran with PTSD secondary to his Vietnam War combat experiences. In the absence of any competent evidence to the contrary, the Board concludes that service connection for chronic PTSD is warranted. ORDER The Veteran's appeal from the denial of service connection for depression is dismissed. Service connection for chronic PTSD is granted. REMAND The Veteran asserts that service connection is warranted for a heart disorder, to include coronary artery disease as the claimed disorder was incurred secondary to the stress associated with his PTSD or, in the alternative, as the result of his Agent Orange exposure while in the Republic of Vietnam. In reviewing the Veteran's service treatment records, the Board notes that the documentation contains the report of a January 1981 Army National Guard physical examination for service entrance and Wyoming Army National Guard treatment records dated in 1981 and 1982. The Veteran's complete periods of active duty, active duty for training, and inactive duty with the Wyoming Army National Guard have not been verified. The VA should obtain all relevant military treatment records and other documentation which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). In a May 2006 Improved Pension Eligibility Verification Report (Veteran with No Children), (VA Form 21-0516-1), the Veteran reported that he was in receipt of Social Security Administration (SSA) disability benefits. Documentation of the Veteran's SSA award of disability benefits and the evidence considered by the SSA in granting the Veteran's claim is not of record. The United States Court of Appeals for Veterans Claims (Court) has clarified that the VA's duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187-188 (1992). The Veteran has not been afforded a VA examination for compensation purposes which addresses his chronic cardiovascular disorder. The VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Record Center and/or the appropriate service entity and request that (1) it verify the Veteran's complete periods of active duty, active duty for training, and inactive duty for training with the Wyoming Army National Guard and (2) forward all available service medical records associated with such duty for incorporation into the record. 2. Contact the SSA and request that it provide copies of all records developed in association with the Veteran's award of disability benefits for incorporation into the record. 3. Then schedule the Veteran for a VA examination to accurately determine the nature and etiology of the Veteran's chronic cardiovascular disabilities. The claims folder should be made available and reviewed by the examiner. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should opine as to whether it is at least as likely than not that any heart disability found to be present is related to or had its onset in service or within one after discharge, is related to his presumed Agent Orange exposure or was caused or aggravated by his service-connected psychiatric disability. 4. Then readjudicate the Veteran's heart disability claim, to include coronary artery disease claimed as a result of Agent Orange exposure with express consideration of the provisions of 38 C.F.R. §§ 3.307, 3.309, 3.310(a); the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995); and the United States Court of Appeals for the Federal Circuit's (Federal Circuit) holding in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If the benefit sought on appeal remain denied, the Veteran should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claims for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran should be given the opportunity to respond to the SSOC. The Veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs