Citation Nr: 0811672 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-12 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection to post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The veteran had active service from January 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The RO previously denied a claim for service connection for PTSD in a March 2001 rating decision. In a February 2004 rating decision the RO reopened the claim because new and material evidence had been submitted, but denied the underlying claim for service connection for PTSD. The RO again denied service connection for PTSD in a July 2004 rating decision, which the veteran is now appealing. The veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in January 2008; a transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2007); Cohen v. Brown, 10 Vet. App. 128 (1997). The veteran's DD Form 214 shows that he was awarded the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. His Military Occupational Specialty was a cook, and his records do not indicate that he participated in combat. Therefore his in- service stressors must be verified. Doran v. Brown, 6 Vet. App. 283, 289 (1994). A veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The Board notes that the claims file includes a diagnosis of PTSD; however, it is clear that the examiners relied upon the veteran's own unverified history as to the existence of stressor events to support the diagnosis, as there had been no verification that an in-service stressor occurred. The veteran's claimed stressor is that while serving in Vietnam he witnessed a friend who was a Captain burn to death after a helicopter crash. The RO was unable to verify the veteran's stressor with the U.S. Army and Joint Services Records Research Record Center (JSRRC) because the veteran did not provide specific information such as the brigade in which he served at the time of the incident, the location, and the full name of the Captain. The Board notes that records referring to the veteran's being charged in a court martial for assault on another soldier indicate that the served in the U.S. Army, Company D, 229th Aviation Battalion (Assault Hel.), 1st Calvary Division (Airmobile), APO San Francisco 96490. The veteran testified at the January 2008 hearing that he was unable to remember exactly when the helicopter crash occurred but that it was in 1968, that the Captain who died was named Logan, and that there would have been a door gunner on board the helicopter as well. The veteran's representative submitted a memorandum in February 2008 stating that the veteran served in Quang Tri in the D Company, 229th AHB, 1st Calvary Division. Attached was information that [redacted] [redacted] and [redacted], who were in the same Company at the veteran, had died on March [redacted], 1968, in a helicopter crash in Quang Tri, South Vietnam. The February 2008 memorandum was signed by the veteran and his representative, and stated that they were waiving consideration of the additional evidence by the Agency of Original Jurisdiction. In a March 2008, the representative filed a motion asserting good cause for the submission of the above-described new evidence more than 90 days after certification of the appeal to the Board. The Board finds the motion to be well supported. However, because further evidentiary development requiring remand is necessary, the motion is moot. Accordingly, the case is REMANDED for the following action: 1. Contact the veteran to give him another opportunity to provide any additional specific information he may have concerning his claimed stressor. He should be asked to provide as much information as possible on the service members who reportedly were killed. Advise him that, if possible, he should provide names of other individuals who were also present and witnessed or knew of the incident, or who can confirm the veteran's proximity to it. The veteran is advised that this information is necessary to obtain supportive evidence of the alleged stressor events, and that he must be as specific as possible, because without such details an adequate search for verifying information cannot be conducted. 2. Forward a copy of the veteran's DD Form 214, together with the stressor information that has been obtained, to the JSRRC for an attempt at stressor verification. Ask the JSRRC to provide any additional information regarding the March [redacted], 1968, helicopter crash in Quang Tri in which [redacted] [redacted] and [redacted] were killed. If the case is not referred to JSRRC, the RO should explain in the record why it was not. 3. Then, review the file and make a specific determination, in accordance with the provisions of 38 C.F.R. § 3.304(f), with respect to whether the veteran was exposed to any in-service stressor. If so, identify the nature of the specific stressor or stressors independently established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 4. If it is determined that that the veteran was exposed to an in service stressor, afford him a psychiatric examination. All indicated tests and studies, including psychological examination/testing, if necessary, are to be performed. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. a. Advise the examiner that only those events which have been verified may be considered for the purpose of determining whether an in-service stressor has resulted in current psychiatric symptoms, and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. b. Any diagnosis of PTSD must be in accordance with the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) of the American Psychiatric Association (DSM-IV). To the extent possible, the examiner is to reconcile any contradictory evidence regarding the etiology of any diagnosed psychiatric disorder. c. If the examiner concludes that the veteran has a diagnosis of PTSD, the examiner should specifically address whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that the PTSD is a result of one or more in-service stressors verified by the RO. d. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 5. After completing the requested action, and any additional notification and/or development deemed warranted, re- adjudicate the claim by evaluating all evidence obtained after the last SSOC was issued. If the benefit sought on appeal remains denied, furnish the veteran an appropriate SSOC and allow him a reasonable period of time to respond. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, including the VCAA and any other applicable legal precedent. 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). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. 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).