Citation Nr: 0809915 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 03-10 750 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to July 1968. The present matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision in which the RO denied the veteran's claim for service connection for PTSD. In June 2004 and October 2006, the Board remanded this matter to the RO (via the Appeals Management Center (AMC), in Washington, D.C) for further action, to include evidentiary development. For the reasons expressed below, this matter is being remanded to the RO via the AMC. VA will notify the appellant when further action, on his part, is required. REMAND Unfortunately, the Board's review of the claims file reveals that further RO action on the claim on appeal is warranted, even though such action will, regrettably, further delay an appellate decision. In the October 2006 remand, the Board requested, in part, that the RO attempt to verify the occurrence of the veteran's claimed in-service stressors by contacting all agencies that might assist in this investigation. After review of the claims file, the Board observes that the RO has not adequately completed the action requested in the prior remand. The RO/AMC attempted to send the veteran a duty to assist letter in January 2007 in which it requested that the veteran complete a "Stressor Details" attachment for each of his alleged in-service stressors. An envelope in the claims file reveals that the letter was undeliverable because the post office box had been closed. Further, information in the claims file shows that AMC personnel discovered a new address for the veteran when the RO/AMC sent him a letter in June 2007 notifying him of an upcoming VA examination. However, the RO/AMC did not attempt to resend the previously undeliverable letter and again used the former address when it sent the veteran a copy of the November 2007 SSOC. In addition, the RO never submitted any of the veteran's alleged stressors to the U.S. Army and Joint Services Records Research Center (JSRRC) in an attempt to verify any of his alleged stressors. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the matter on appeal must be remanded for full compliance with the October 2006 Board remand. The veteran's alleged stressors include (1) involvement in combat in Vietnam and killing at least 300 people; (2) a line of duty attack with rocket rounds from enemy forces in July 1967; (3) a mortar attack in Phu Lai in September 1967 that hit the jeep he was in; (4) a fellow serviceman named Chabay or Chabek killed in service in July 1967; and (5) a fellow serviceman whose name the veteran could not remember killed by a land mine in December 1967. In a PTSD questionnaire the veteran submitted in January 2002, the veteran provided his unit designation as "Big Red 1, 1 4 Quarter Cav". In this case, the RO did not attempt to develop any of the veteran's alleged stressors, even though the reported stressors of the July 1967 attack of rocket rounds and the September 1967 attack of mortar rounds appear to be independently verifiable. The Board thus finds that the RO should attempt to independently verify these claimed stressors, to include through the JSRRC or another source, as appropriate. Accordingly, on remand, the RO should contact the veteran at the current address of record and request that he provide more specific details of the in-service stressful incidents: dates, places, description of the events, medals or citations received as a result of the events, the complete names and other identifying information concerning any other individuals involved in the events, and especially his unit of assignment at the time of the events. At a minimum, the veteran must indicate the location and approximate time (a two-month specific date range) of the stressful events in question, and the unit of assignment at the time the stressful event occurred. The RO should also invite the veteran to submit corroborating statements in support, to include from former service comrades. Thereafter, unless objective evidence verifying the occurrence of one or more stressors has been obtained, the RO should attempt to independently verify the veteran's stressors through contact with the JSRRC. The Board further points out that the record includes two VA examinations showing a diagnosis of PTSD. The October 2007 VA examiner reported that the veteran's PTSD was most likely caused by or was a result of combat mental trauma. In this regard, the Board points out that a criterion for service connection for PTSD is a link between the veteran's PTSD and the verified in-service stressors. See 38 C.F.R. § 3.304(f). In the event that the RO determines that the record establishes the existence of a stressor or stressors, the RO should arrange for the veteran to undergo another VA examination, by a psychiatrist, at an appropriate VA medical facility. The veteran is hereby advised that failure to report to any such scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file any copy(ies) of notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. In addition to the above development, the Board notes that review of the claims file reveals that there may be pertinent Federal records outstanding. The RO should also obtain and associate with the claims file all outstanding VA medical records. The most recent records of treatment from the Iowa City VAMC are from March 2005. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain from the Iowa City VAMC all outstanding pertinent medical records since March 2005, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain all records of evaluation and/or treatment of PTSD from the Iowa City VAMC from March 2005 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the veteran a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for service connection for PTSD that is not currently of record. The RO should afford the veteran the notice intended in its misdirected January 2007 letter--an additional opportunity to provide information regarding his alleged in- service stressful events that led to his PTSD. The RO should ask the veteran to provide more specific details of all his claimed in-service stressful incidents: dates, places, a description of the events, any medals or citations received as a result of the events, names and other identifying information concerning any other individuals involved in the events, and especially his unit of assignment at the time of the events. At a minimum, the veteran must indicate the location and approximate time (a two-month specific date range) of the stressful events in question, and the unit of assignment at the time each stressful event occurred. The veteran is advised that this information is vitally necessary, and that he must be as specific as possible, since, without such detailed information, an adequate search for verifying information cannot be conducted. The veteran should also be invited to submit statements from fellow service members or others that establish the occurrence of his claimed in-service stressful experiences. The RO should ensure that its letter meets the requirements of Dingess/Hartman (cited to above)--particularly as regards assignment of disability ratings and effective dates, as appropriate. 3. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify him and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Unless the RO determines that sufficient evidence corroborating at least one of the stressful experiences has been associated with the claims file, the RO should undertake necessary action to attempt to verify the occurrence of the veteran's alleged in-service stressful experiences. The RO should forward to the JSRRC all supporting evidence (to include any probative evidence submitted by the veteran). If JSRRC's research of available records for corroborating evidence leads to negative results, the RO should notify the veteran, and afford him the opportunity to respond. The RO should also follow up on any additional action suggested by JSRRC. 5. After associating with the claims file all available records and/or responses received from each contacted entity, the RO should prepare a report detailing the occurrence of any specific in-service stressful experience(s) deemed established by the record. This report is then to be added to the veteran's claims file. If the occurrence of no claimed in-service stressful experience(s) is/are verified, then the RO should so state in its report, skip the development requested in paragraph 6, below, then proceed with paragraph 7. 6. If, and only if, evidence corroborating the occurrence of any of the claimed in-service stressful experiences is received, the RO should arrange for the veteran to undergo an appropriate VA psychiatric examination, by a physician, at an appropriate VA medical facility. The entire claims file must be made available to the examiner designated to examine the veteran, and the report of examination should include discussion of the veteran's documented psychiatric history and assertions. All tests and studies, to include psychological testing, if deemed warranted, should be accomplished, and all clinical findings should be reported in detail. In rendering a determination as to whether the diagnostic criteria for PTSD are met, the examiner is instructed that only a specifically corroborated in-service stressful event(s) may be considered for the purpose of determining whether exposure to such in-service event has resulted in PTSD. If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the veteran's verified stressor(s). The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 7. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection for PTSD in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the RO must furnish to the veteran an appropriate SSOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ K. J. ALIBRANDO Acting 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).