Citation Nr: 0809750 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 99-24 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert P. Walsh, Esq. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran served on active duty from June 1962 to May 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA), which reopened the veteran's previously denied claim of entitlement to service connection for a chronic psychiatric disability on the basis of his submission of new and material evidence and denied the claim on the merits, to include denial of service connection for PTSD. In October 2002, the veteran testified at a personal hearing before a Veterans Law Judge from the Board. A copy of the transcript of that hearing is of record. Thereafter, the case was remanded in January 2004 and July 2005 for evidentiary and procedural development. In a May 2005 letter, the Board notified the veteran that the Veterans Law Judge who conducted the October 2002 hearing was no longer employed by the Board and informed him of his right to another Board hearing. In December 2005, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. In April 2006, the case was referred to a physician associated with the Veterans Health Administration for a review of the pertinent record, a definitive psychiatric diagnosis, and a nexus opinion of how the diagnosis related to the veteran's period of active duty. The requested opinion was rendered in April 2006 and the veteran, via his representative, reviewed the opinion and thereafter, in July 2006, submitted a waiver of review by the agency of original jurisdiction, consenting to the referral of the appeal to the Board for immediate adjudication. This case was than returned to the Board in August 2006. In a September 2006 decision, the Board reopened and denied the claim for service connection for PTSD on the merits following a de novo review of all the evidence, both old and new. The veteran appealed the September 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2007 Joint Motion for Remand, the Court vacated and remanded the part of the September 2006 Board decision that denied service connection for PTSD to the Board for readjudication. 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 As an initial matter, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court, are applicable to this matter. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. As the case is being remanded for additional development, appropriate action should be taken to ensure adequate VCAA notice as to the type of evidence necessary to substantiate the veteran's claim for service connection for PTSD is provided. The veteran contends that he currently suffers from PTSD, as a result of events during his active military service. The veteran served in the United States Army as a rocket artillery crewman from June 1962 to May 1964. He was initially stationed stateside, but from December 1962 to May 1964, he served in the Federal Republic of Germany. He did not participate in combat against enemy forces. His service personnel records show that he received a proficiency score of "excellent" for his military performance from June 1962 to December 1962. In December 1962, he was transferred from duty in the United States to a duty station in Germany. Thereafter, for the period from December 1962 to his discharge under honorable conditions in May 1964, he received an "unsatisfactory" proficiency rating. According to his personnel records, the veteran was found to have engaged in willful misconduct after he got intoxicated on alcohol and then instigated fights over racial issues. Other problems included assaulting a German civilian, being absent from his duty station, dereliction of duty, and not obeying a lawful order. Service personnel records reflect that in March 1964 he was reduced in rank from an E-3 to an E-2. A March 1964 "Elimination of Unsuitable Enlisted Personnel" memoranda recommended that the veteran be discharged from service prior to the expiration of his three-year term for failure to conform to the standards and behavior pattern required of a soldier. "Counseling, reprimands and four Article 15's have failed to influence him. [the veteran] continues to act deliberately in a manner detrimental to the rest of his section and the Army. His dress is sloppy, his attitude toward work is negative, and he holds his superiors in contempt." The veteran's service treatment records show that he had a normal psychiatric evaluation on his entrance examination in June 1962. A treatment report dated in January 1963 shows that he injured his right hand in a fight in December 1962 while stationed at Barton Barracks in the Federal Republic of Germany. His service personnel records reflect that he received several disciplinary actions for alcoholic intoxication, poor observance of his military duties, disruptive behavior, assaulting a German citizen, and deliberately provoking racial arguments with other soldiers. The September 1963 report of a psychiatric evaluation shows that he did not have any psychiatric disorder, notwithstanding his episodes of drunkenness with disciplinary problems and drinking problems. In a January 1964 psychiatric evaluation it was noted that the veteran admitted to a history of excessive drinking, including an incident prior to service when he became drunk in his junior year of high school, argued with the school principal, quit high school, and thereafter immediately enlisted into the Army. During the evaluation, the veteran related in a logical and coherent manner, manifesting no signs of psychiatric illness. On separation examination in May 1964, he was deemed to be psychiatrically normal and denied having nervous trouble, a drinking habit, or depression on his medical history questionnaire. Post-service VA, private, and SSA medical records dated from 1972 to 2005 show that the veteran was treated for numerous mental disorders, including chronic alcoholism, substance abuse, adjustment, disorder, bipolar disorder, major depression, PTSD, and depression, with a mixed personality disorder with anti-social, schizotypal, and paranoid features. Multiple PTSD diagnoses provided by private physicians as well as a VA psychologist attributed the veteran's claimed PTSD disability to the veteran's account of being victimized during active service because of his race. The records relate many post-service incidents of anti-social behavior exhibited by the veteran and reflect that he was obsessed with racial issues. In a June 1999 VA mental disorders examination report, with a July 1999 addendum, the psychiatrist indicated that although the veteran complained of racial discrimination while in service, which he felt led to PTSD, his complaints did not reach the level to qualify for PTSD. In his October 2002 and December 2005 hearing testimony, and in various written accounts presented in support of his claim, the veteran alleged that he was exposed to the following stressors during his period of active service: 1.) While stationed in the Federal Republic of Germany in December 1962, the veteran was subjected to racial taunting by two white members of his unit, who called him racial slurs and threatened to lynch him. The veteran stated that he had no problems with alcohol prior to service, but that the racial abuse he endured in service caused him to start drinking heavily. 2.) The veteran referred to a witness named H.M. who served with him in his unit and witnessed the veteran being subjected to abuse on account of his race. According to the veteran, Mr. M. also had a German girlfriend who was killed when she got decapitated in an accident. The veteran did not indicate that he actually witnessed this incident. The veteran stated that he maintained contact with Mr. M., but that the witness now suffers from Alzheimer's disease. 3.) The veteran stated that he knew a cook named "Lucky" who beat his girlfriend or spouse to death with a frying pan. (The veteran did not indicate that he actually witnessed this incident) 4.) The veteran stated that he saw a sergeant shoot two enlisted men in a non-fatal shooting for inciting a race riot in Germany during service. Three enlisted men called the veteran a racial slur, but the veteran was blamed for instigating the race riot. Although he knew of several witnesses who would attest to this, with the exception of Mr. M., he was unable to locate any of them even with the assistance of a private investigator. 5.) The veteran reported that he experienced a high level of emotional stress during military service while handling nuclear warheads as a rocket artillery crewman. In an April 2006 opinion, a VHA medical expert reported that he had reviewed the veteran's medical history contained within his claims file, including the medical reports presenting a diagnosis of PTSD linked to the veteran's self- instigated racially-motivated incidents in service. Based on his overview of the assembled record of the veteran's psychiatric and social history, the medical expert determined that the veteran's definitive psychiatric diagnosis was polysubstance dependence on Axis I, and antisocial personality disorder on Axis II. The medical expert presented the following commentary: "To make a diagnosis of post-traumatic stress disorder, in my opinion, requires that the (veteran) is victimized by the trauma, and if (he) is inciting fights and inciting incidents like (the racial incidents noted in service), in my opinion that does not meet stressor criteria for PTSD. I do not see that the (veteran) has PTSD. I do not see that the (veteran) suffers post-traumatic stress disorder based on anything that happened in service. If he instigated fights and got into trouble in this regard, that, in my opinion, does not meet stressor criteria because he chose to instigate it; and in that sense, I do not feel that the (veteran) meets criteria for post-traumatic stress disorder. Again, I feel the most likely diagnoses in this case are polysubstance dependence and antisocial personality disorder." In the present case, the veteran's military records clearly establish that he did not serve in combat. His multiple PTSD diagnoses are predicated on racial incidents which he claims were precipitating stressors. Other stressors, which include the violent death of "Lucky" the cook's spouse/girlfriend at Lucky's hands, the gruesome death of H.M.'s German girlfriend by accidental decapitation, and his alleged handling of nuclear warheads as a rocket artillery crewman have not been verified by any objective documentation received or have not been verified due to the lack of information provided by the veteran despite several requests for additional information by VA. The Board observes that in the October 2007 Joint Motion for Remand the parties agreed that the VA failed to provide an adequate statement of reasons and bases for its denial of service connection for PTSD. It was indicated that the Board did not address the inconsistencies between the standard used to determine the sufficiency of the veteran's stressors in the VHA medical expert opinion and in the DSM IV, as the VHA examiner opined that the veteran's claimed stressors could not be stressors because they were the result of his instigation and the DSM-IV does not reveal any criterion which requires a stressor to be independent of instigation by the veteran. It was further noted that to the extent the Board considers the veteran's actions during service preclusive of service connection for PTSD, it should consider whether the stressors are the result of willful misconduct under 38 U.S.C.A. § 105(a). The parties also agreed that the medical evidence was insufficient to decide the veteran's claim and indicated that a further VA examination should be scheduled following an initial determination assessing which potential stressors, if any, were found to be the result of willful misconduct. As instructed in the Joint Motion, the AMC/RO should first make a determination concerning whether any of the veteran's reported stressors, specifically the reported racial incidents during service, are the result of willful misconduct under 38 U.S.C.A. § 105(a). An injury or disease incurred during active service is not deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d). VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if the VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2007). Accordingly, the AMC/RO should arrange for the veteran to undergo VA PTSD examination at an appropriate VA medical facility to determine the nature and etiology of the veteran's claimed PTSD. The appellant is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2007). The claims file also reflects that the veteran has received medical treatment from VA Medical Center (VAMC) in Battle Creek, Michigan; however, as the claims file only includes records from that facility dated up to December 2004, any additional records from that facility should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO should obtain and associate with the claims file all outstanding VA records. Accordingly, in view of the foregoing discussion, the case is REMANDED for the following actions: 1. The AMC/RO is to provide the veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to substantiate his service connection claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The AMC/RO should also provide the veteran with notice of information concerning willful misconduct under 38 U.S.C.A. § 105(a). 2. The AMC/RO should contact the veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the veteran for his claimed PTSD disability since November 1998. Of particular interest are any outstanding VA records of evaluation and/or treatment of the veteran's claimed PTSD disability, for the period from December 2004 to the present, from the VAMC in Battle Creek, Michigan. The veteran should be asked whether any childhood/adolescent incidents resulted in social service/foster home/legal intervention, and if so, he should provide details sufficient to obtain any records associated with that action. The veteran is requested to provide the name and address of all high schools he attended prior to his entry into service in order that school records be obtained. After the veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his attorney are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. The AMC/RO should review the veteran's reported stressors and make a specific determination as to whether any of the veteran's reported stressors, specifically the reported racial incidents during active service, are due to his own willful misconduct under 38 U.S.C.A. § 105(a). 4. Thereafter, and only if one or more in-service stressors that has been verified or otherwise accepted as factual and not found to be the result of the veteran's own willful misconduct, the veteran is to be afforded a VA medical examination by a physician in the specialty of psychiatry. The purpose of such examination is to ascertain the nature and etiology of the veteran's claimed PTSD. Prior to the examination, the claims folder must be made available to the psychiatrist or psychologist who performs the evaluation, for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. A comprehensive life history, including information regarding his alcohol abuse and verbal altercation with his high school principal are to be obtained. The examination is to include a review of the veteran's history and current complaints, as well as a comprehensive mental status evaluation. Any indicated diagnostic studies, including psychological testing, must also be accomplished if deemed warranted by the psychiatrist. All established psychiatric diagnoses are then to be fully set forth. It is requested that the psychiatrist offer an opinion, with full supporting rationale, as to whether the veteran has PTSD meeting the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM IV), and, if so, whether it is at least as likely as not that the veteran's PTSD is the result of any verified in-service event(s). Such discussion must include the examiner's opinion as to the presence or absence of linkage between current symptoms of the veteran and any verified stressor(s). 5. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 6. After completion of the above and any additional development deemed necessary, the RO must readjudicate the veteran's claim of entitlement to service connection for PTSD on the basis of all the evidence on file and all governing legal authority. If the benefit sought on appeal is not granted, the veteran and his attorney must be provided with a supplemental statement of the case (SSOC) which should include a summary of the evidence and the law and regulations considered as well as any willful misconduct determinations pertinent to the issue currently on appeal. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further 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). _________________________________________________ RENÉE M. PELLETIER 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).