Citation Nr: 0810106 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 07-08 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability other than PTSD. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1971 to May 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for PTSD; and declined to reopen a claim of entitlement to service connection for a psychiatric disability other than PTSD. In August 2007, a Travel Board hearing was held before the undersigned. A transcript of that hearing is associated with the claims file. At the hearing, the veteran was granted a 180 day abeyance period in order to submit additional evidence. The abeyance period has expired, and no additional evidence was received. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. REMAND An April 2004 private examiner provided the veteran with a diagnosis of PTSD and opined that it resulted from his time in service. However, the evidence does not show the veteran engaged in combat with the enemy and that diagnosis is not based on a stressor event corroborated by credible supporting evidence. The veteran's service personnel records show he was assigned to Fort Dix from May 28 to July 30, 1971. He alleges that while he was in basic training at Fort Dix during the summer of 1971, lightening struck a group of soldiers killing one and injuring two others. The incident was verified by a "buddy statement" from fellow solider R. K. F. The RO sent a request to the U. S. Army and Joint Services Records Research Center (JSRRC) to search the alleged incident. JSRRC's response was: "We reviewed the Army Safety Program, Risk Management Information System, for the accident reports. The incident is not in their records. Their records are not complete. The quality and accuracy of the information you provide us, directly reflects the quality of our research and response time to you. You did not furnish us with the unit designation of the veteran at the time of the incident. There were many basic training units at Fort Dix. Always review the veteran's DA Form 20 to provide us with the complete unit designation at the time of the incident the veteran is claiming. Once you review and determine the veteran's actual unit, you should conduct Morning Report search, the incident and causalities should be recorded in the Morning Report". The March 2007 Statement of the Case, stated in part: ". . .Information from the U.S. Armed Forces Service Center for Unit Records Research indicates that the Army Safety Program and Risk Management Information System records were reviewed for accident reports, but that your claimed incident was not in their records". What it does acknowledge is that it was noted that the records searched are incomplete. There is no indication in the record that the further development suggested was completed. As the location and an approximate time frame for the alleged stressor event are known, such event is eminently capable of being verified or found to not have occurred as alleged. Consequently, VA's duty to assist has not been met. If the alleged stressor event is verified, the matter of sufficiency of the stressor to support a diagnosis of PTSD would then be a medical question. Regarding whether or not new and material evidence has been received for a psychiatric disability other than PTSD; in Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) essentially stated that in a claim to reopen VA must notify a claimant, with some degree of specificity, of the evidence and information that is necessary to reopen a claim, as well as of what evidence and information are necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Review of the claims file reveals that notice in this regard is incomplete to date. A final rating decision in March 1987 denied service connection for generalized anxiety disorder on the basis that such disability was not noted in service (and, essentially, not shown to be related to service). A January 1994 Board decision upheld a subsequent rating decision that declined to reopen the claim. The veteran filed the instant claim to reopen in December 2003. Although April and August 2004 correspondence (prior to Kent) notified him generally that he needed to submit new and material evidence to reopen the claim of entitlement to service connection for a psychiatric disability, and also provided a general definition for new and material evidence, the notice provided was not Kent- compliant. He was not advised as to what type of evidence would be considered new and material, and was not advised of what additional evidence was needed to substantiate the underlying claim of service connection for a psychiatric disability. From the veteran's statements, it appears that he is unaware both of what is needed to reopen the claim, and of what is needed to substantiate the underlying claim. As the Court has held that failure to provide the type of notice outlined in Kent is a prejudicial notice defect, the Board has no recourse but to remand this matter for proper notice. Accordingly, the case is REMANDED for the following: 1. Regarding the veteran's attempt to reopen a claim of service connection for a psychiatric disability other than PTSD, the RO should provide him the type of notice required in claims to reopen under Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice must specifically include the definition of new and material evidence, and (with some degree of specificity) notice as to what type of evidence would be considered new and material, as well as what is necessary to establish the underlying claim of service connection for such disability. Since the prior final decision was based essentially on a finding that there was no evidence of a psychiatric disability in service or that such disability was related to service, the notice should specify that for evidence to be considered new and material, it would have to tend to show that a psychiatric disability was noted in service, or that a current psychiatric disability is somehow otherwise related to the veteran's service. The veteran and his representative should have the opportunity to respond. The RO should arrange for any further development suggested by his response. 2. The RO should arrange for exhaustive development (including that suggested in the CURR response on the undated document printed out on March 1, 2007) for verification of the stressor event alleged by the veteran, i.e., that while he was stationed at Fort Dix lightning struck and killed or injured a number of fellow trainees in his unit at that facility. He must cooperate in this matter by providing any further identifying information necessary for this development to proceed. 3. If (and only if) the alleged stressor event in service is verified, the RO should arrange for the veteran to be afforded a VA psychiatric evaluation to determine whether he has PTSD based on such stressor. The veteran's claims file must be reviewed by the examiner in conjunction with the examination. The examination and the report thereof must be in accordance with DSM-IV. If PTSD is not diagnosed, the examiner should explain why the veteran does not meet the criteria for this diagnosis. The examiner must explain the rationale for all opinions given. 4. The RO should then re-adjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ GEORGE R. SENYK 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).