Citation Nr: 0513258 Decision Date: 05/17/05 Archive Date: 06/01/05 DOCKET NO. 04-07 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from June 1968 to March 1970. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in December 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). The Board has reviewed the record and finds that additional development is necessary before appellate action may be completed in this case. In this regard, the Board notes that the RO must be offered the opportunity to obtain additional service personnel records, to give the veteran another opportunity to clarify his stressors and then to verify the veteran's averred stressors, and to accord the veteran an examination to determine the nature and etiology of his currently diagnosed PTSD. First, the RO has not had the opportunity to obtain the veteran's service personnel records, or "201 file," for his period of active service. Second, while the record reflects that the RO has requested that the veteran provide more specific information about his stressors, the Board notes that some information can be gleaned by the documents that are already of record. The veteran stated in September 2001 that he was assigned to Marine Aircraft Group (MAG) 17, which was stationed at Da Nang Air Base in Vietnam from 1969 to 1970. He averred that in his capacity as a supply and warehouseman, it was his responsibility to go through the personal effects and belongings of marines who had been killed or were found to be missing in action. In addition, he stated he performed guard and search and patrol duties as assigned, and the base was the frequent target of attack. The veteran has also identified racial tension and his unwilling participation in several confrontations in which Marines were injured. VA inpatient and outpatient records show that the veteran is under treatment for PTSD that has been found to be related to stressors he experienced in Vietnam. In addition, a VA general medical examination dated in December 2001 reflects a diagnosis of PTSD. Yet, the RO has not attempted to verify the veteran's averred stressors, nor has it had the opportunity to consider the veteran's claim under Pentecost v. Principi, 16 Vet. App. 124 (2002). In addition, the RO has not had the opportunity to develop the veteran's claim as one involving personal assault. Significantly, regarding PTSD cases where the veteran asserts personal assault as the in-service stressor, VA has a heightened duty to assist in gathering evidence corroborating the in-service stressors in accordance with the provisions of VA Adjudication Manual M21-1. Patton v. West, 12 Vet. App. 272 (1999). In such cases, M21-1 provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. See M21-1, part III, 5.14(c). As development of the claim under M21-1 has not been completed, the Board finds that further actions must be undertaken to ensure that the VA's duty to assist the veteran in the development of his claims has been complied with. Moreover, the December 2001 VA examination of record is for general medical only, and was conducted absent review of the claims file. In the present case, the Board finds it would be helpful to fully develop the medical evidence in this case and then accord the veteran VA examinations to determine the nature, extent, and etiology of his PTSD-with review of the claims file and in consideration of all of the medical evidence of record. See 38 C.F.R. § 3.159(c)(4) (2004). The Board notes that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Disabled Veterans of America v. Secretary of Veterans Affairs (DAV v. Sec'y of VA), 327 F.3d 1339 (Fed. Cir. 2003) invalidated the Board's ability to cure VCAA deficiencies. Therefore a remand is required in this appeal so that additional development may be undertaken in order to fulfill the Department's duty to assist the appellant with his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2004). Accordingly, and to ensure full compliance with due process requirements, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO must ensure that the notification requirements set forth at 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) are fully complied with and satisfied as to the issue of entitlement to service connection for a psychiatric disorder to include PTSD. In particular, the RO must inform the appellant: (1) of the notification and duty to assist provisions of the VCAA and its implementing regulations, (2) about the information and evidence not of record that is necessary to substantiate his claims for service connection for a psychiatric disorder to include PTSD; (3) about the information and evidence that VA will seek to provide; (4) about the information and evidence the appellant is expected to provide; and (5) request or tell him to provide any evidence in his possession that pertains to his claims. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the issue on appeal. Furthermore, the appellant should be specifically informed as to what portion of evidence he is required/expected to submit, and which portion of the evidence the VA would attempt to obtain in order to assist the appellant in substantiating his claims, per 38 U.S.C.A. §§ 5103(a), 5103A; Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Charles v. Principi, 16 Vet. App. 370 (2002)). 2. The RO should request that the veteran identify VA and non VA health care providers who have treated him for any psychiatric disorders, to include PTSD, from his discharge from active service in 1970 to the present. 3. The RO should then obtain the veteran's medical records from all identified health care providers-that are not already of record. In particular, the RO should request any and all treatment records for treatment accorded him for psychiatric disorders, to include any and all mental hygiene records to include any and all reports of group and individual therapy, from the VAMC in Miami, Florida, and any other VAMC the veteran may identify, from 1970 to the present-that are not already of record. 4. The RO should determine whether the veteran is receiving disability benefits from the Social Security Administration (SSA). If so, the RO should request copies of the determination that found the veteran to be disabled from either SSA, and copies of all medical evidence used in arriving at the determination. 5. The RO should ensure that it has the veteran's complete service personnel records ("201 file") and service medical records, including clinical records, hospital medical records, and any and all administrative records to include copies of legal and administrative proceedings, evaluations, citations for awards, etc-including the unit commendation medal, or "unit citation badge" the veteran identified in his September 2001 stressor statement. If the service medical, hospital, or personnel records are unavailable, the RO should use alternative sources to obtain such records, using the information of record and any additional information the appellant may provide. If necessary, the RO should use any and all methods of reconstruction of service records used in fire-related cases. If necessary, the RO should request that the veteran or his representative provide further information. The RO should consider special follow-up by its military records specialist and/or referral of the case for a formal finding on the unavailability of the service medical or personnel records. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1 Part III, chapter 4, paras. 4.28 and 4.29. The RO should complete any and all follow-up actions referred by NPRC and service departments, including requesting unit histories, Morning Reports and other such reports which could be used to verify daily personnel actions from NPRC. 6. The RO should offer the veteran another opportunity to identify specific stressors that he believes caused his PTSD. The RO should remind the veteran that it is important to provide as specific and detailed information as possible to facilitate verification of his averred stressors. 7. The RO should offer the veteran an opportunity to procure "buddy statements" from service members who may have witnessed the events he identifies as his stressors, including the racial tension and confrontations that resulted in injury to his fellow Marines. Concerning incidents of personal assault and racial tension, the RO should offer the veteran an opportunity to present statements from friends, fellow service- members, and family members to whom he may have confided these events, who may have observed his behavior during leave or immediately following his discharge from active service and could attest to changes in his character or behavior, or to whom he may have written while he was in service. 8. The RO should request verification from the U.S. Marine Corps, and request the service department provide any available information which might corroborate the veteran's averred specific or general inservice stressors. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, part 3, chapter 5, paragraph 5.14. The RO should provide U.S. Armed Services Center for Research of Unit Records (USASCRUR) with a description of the averred stressors. The letter should include the following information: ? Exposure to enemy fire while assigned to Da Nang Air Force Base with Marine Air Group (MAG) 17 and/or H&MS-17, MWSG-17, 1st MAW from approximately 1969 to 1970 (the RO is requested to please provide specific dates after review of the veteran's service personnel file) ? Responsibilities including handling the personal effects and belongings of marines that were killed in action or found to be missing in action while stationed at Da Nang Air Base from approximately 1969 to 1970 (the RO is requested to please provide specific dates after review of the veteran's service personnel file) ? Responsibilities including standing guard, operating as an infantryman, and participating in search patrols while stationed at Da Nang Air Base from approximately 1969 to 1970 (the RO is requested to please provide specific dates after review of the veteran's service personnel file) ? General conditions at Da Nang Air Base, Vietnam during approximately 1969 to 1970 (the RO is requested to please provide specific dates after review of the veteran's service personnel file), in particular, the frequency of attacks on the base. The RO should provide the service department with copies of service personnel records obtained showing service dates and duties and units of assignment; and any further statements the RO receives pursuant to this Remand. In addition, the RO should complete any and all follow-up actions referred by NPRC and the service department, including the request for morning reports and unit histories. 9. Concerning the racial tension and confrontations that resulted in injury to other Marines the veteran discussed in his September 2001 stressor statement, the RO should make every attempt to verify these events, using the September 2001 stressor statement and any other statements of record, including development under the specialized development procedures proscribed under M21-1, Part III, 5.14(c)(5), for that purpose. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part III, 5.14(c)(5). In addition, the RO should complete any and all follow-up actions referred by NPRC and the service department. 10. When the above development has been completed, the RO should afford the veteran a VA examination by the appropriate specialist to determine the nature, extent, and etiology of the veteran's claimed psychiatric disability to include PTSD. All indicated tests and studies should be performed. The claims folder, including all newly obtained evidence and the veteran's service medical records, must be sent to the examiner(s) for review. The examiner(s) should address the following matters: ? Summarize the medical history, including the onset and course, of any psychiatric disorder, to include PTSD. ? Describe any current symptoms and manifestations attributed to any psychiatric disorder, to include PTSD. ? Complete any diagnostic and clinical tests required and provide diagnoses for any and all psychiatric pathology. ? Provide an opinion as to the etiology of any diagnosed psychiatric disorder, to include anxiety and PTSD. In particular, the examiner is requested to provide the following opinions: 1. Is it as likely as not that any currently diagnosed psychiatric disability to include PTSD had its onset during or is otherwise the result of any period of the veteran's active service? 2. Is it as likely as not that any currently diagnosed PTSD is the result of stressful experiences he experienced during any period of the veteran's active service? 11. After receipt of any and all newly acquired evidence, the RO should again review the veteran's claim for service connection for a PTSD, in consideration of Pentecost v. Principi, 16, Vet. App. 124 (2001) and Patton v. West, 12 Vet. App. 272 (1999). If the decision remains in any way adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and with a reasonable period of time within which to respond. The case should thereafter be returned to the Board for further review, as appropriate. The veteran need take no action until he is so informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is reminded that it is his responsibility to appear for any and all scheduled examinations and that failure to do so could result in the denial of his claim. 38 C.F.R. § 3.655 (2004). The Board intimates no opinion as to the ultimate outcome of this case. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2004).