Citation Nr: 0809738 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-25 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from May 1966 to May 1968, including service in Vietnam from October 1966 to October 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) and an April 2006 Board remand. In a June 2006 statement, the veteran raised a claim for entitlement to service connection for injury of the right ring finger. This issue is referred to the RO for action deemed appropriate. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although substantial development, to include a prior Board remand, has already taken place in this appeal, the Board finds that remand is again required because not all of the directives in the prior remand have been satisfied. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance). Although the RO obtained clarification of the scope of the veteran's claim and provided appropriate notification, the RO has not yet attempted to verify the veteran's alleged stressors. The veteran claimed entitlement to service connection for a psychiatric disorder, to include post traumatic stress disorder (PTSD). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2007); 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. 38 C.F.R. § 3.304(f) (2007). In the April 2006 remand, the Board noted that although there was no PTSD diagnosis of record, the veteran had alleged a specific inservice stressor that the RO had not yet attempted to verify. The Board thus requested that the RO attempt to obtain additional information regarding the stressor from the veteran and then request verification from the U.S. Army and Joint Services Records Research Center (JSRRC). Although the RO requested additional information from the veteran, the RO did not attempt to verify the alleged inservice stressor. Such verification must now be completed. Stegall, 11 Vet. App. at 271. The Board also notes that after the supplemental statement of the case was issued, the veteran sent in 2 lay statements asserting additional stressors. In June 2006, the veteran reported that a friend and fellow soldier, Sergeant Dugie, was shot and killed while they were on their way to the chow point. The veteran stated that this occurred around March 1967, during Operation Iron Train. The veteran reported that his unit assignment during the incident was the 1st of 5th. The veteran also stated that he had no other information or evidence to provide. In a September 2006 statement, the veteran reported that while south of Phu Bien on Highway 13, a personnel carrier ran over a land mine and killed 7 men. The veteran stated that he could not remember names and dates. Although the land mine incident does not contain sufficient specific information to attempt verification, the incident regarding the death of Sergeant Dugie contains specific information such that verification by the JSRRC is required. Accordingly, the case is REMANDED for the following action: 1. The RO must review the file and prepare a summary of the veteran's claimed stressors, to include 1) that in May 1967 (possibly the 16th, 17th, and 18th), while stationed in Vietnam with the Army's Battery B, 1st Battalion, 5th Field Artillery, 1st Infantry Division, his gun position was almost overrun and he was under heavy mortar fire, and 2) that in March 1967, during Operation Iron Train, and while stationed in Vietnam with the Army's Battery B, 1st Battalion, 5th Field Artillery, 1st Infantry Division, the veteran's fellow soldier and friend Sergeant Dugie, was shot and killed while they were on their way to the chow point. This summary, and all associated documents, must be sent to the JSRRC. The RO must request that the JSRRC provide information which might corroborate the alleged stressors, to include, but not limited to, the March 1967 death of Sergeant Dugie and being under mortar fire in May 1967. The RO must associate any response and/or additional records with the claims file. 2. If, and only if, the RO determines that the evidence establishes the occurrence of the alleged stressor or stressors, then the veteran must be provided with a VA examination by a psychiatrist to ascertain the nature, severity, and etiology of any PTSD found. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All necessary special studies or tests including psychological testing and evaluation must be accomplished. The RO must provide the examiner a summary of the verified stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to a verified in-service stressor has resulted in the current psychiatric symptoms. The examination report must include a detailed account of all pathology found to be present. If the diagnosis of PTSD is deemed appropriate, the examiner must specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record and found sufficient to produce PTSD by the examiner. The report of examination should include a complete rationale for all opinions expressed. The report prepared must be typed. 3. The RO must notify the veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. The RO must take care to adjudicate the claim for entitlement to service connection for a psychiatric disorder, to include PTSD. If the claim remains denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ STEVEN L. COHN 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) (2007).