Citation Nr: 0812337 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 00-04 173A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from October 1964 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 RO rating decision that denied service connection for PTSD. In February 2007, the Board remanded this appeal for further development. 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 The Board finds that there is a further VA duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e. under the criteria of DSM-IV]; 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather his alleged service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The veteran claims service connection for PTSD based on alleged stressors in Vietnam. His service personnel records indicate that he was not awarded decorations evidencing combat. Such records reflect that he had 10 months and twenty days of foreign and/or sea service and that he served in Vietnam with the 266th U.S. Army Band as a cornet player. His occupational specialty was listed as a cornet or trumpet player. His service medical records do not show treatment for any psychiatric problems including PTSD. Post-service private and VA treatment records show treatment for disorders including PTSD. As noted in the February 2007 Board remand, the veteran has reported various stressors. For example, in a July 1997 response to a PTSD questionnaire, he reported that following a July 1965 absent without leave (AWOL) incident, he was abused at Fort Dix, New Jersey while with the 19th Army Band. The veteran alleged that after a suicide attempt he was taken to the stockade where he was locked up unclothed and suffered daily beatings. In an October 1999 statement, the veteran reported that he was exposed to stand off and sapper attacks when he was stationed at Tan Son Nhut base. Additionally, in a May 2003 response to a PTSD questionnaire, the veteran reported that he was assigned to the 266th U.S. Army Band from March 1966 to March 1967 and that he was exposed to stand off and sapper attacks and involved in a firefight. The veteran's service personnel records show that he served in Vietnam from September 1966 to September 1967. In an October 1998 response to a request by the RO, the U.S Armed Services Center for Research of Unit Records (USASCRUR) indicated that a unit history of the 266th Army Band stated that it arrived in the Republic of Vietnam on November 26, 1965 and was assigned to Headquarters, Special Troops. USASCRUR indicated that the 266th Army Band performed over 384 musical commitments before the Vietnamese and the American audiences during the period from December 1, 1965 to March 31, 1966. It was noted that the history did not mention any combat activities involving the 266th Army Band. It was also reported, however, that records indicated that standoff and sapper attacks against the area of Tan Son Nhut occurred on April 13, 1966 and December 3 and 4, 1966. The Board notes that the veteran has alleged that he was present when such attacks occurred at Tan Son Nhut base. The Board observes that a mortar attack on one's unit may be accepted as a stressor event that could be verified and, in some cases, form the basis of a PTSD diagnosis. See Pentecost v. Principi, 16 Vet. App. 124 (2002). Therefore, the October 1998 response from the USASCRUR essentially verifies one of the veteran's alleged stressors. The Board observes that the veteran was last afforded a VA examination in June 1997. There is no indication that the veteran's claims file was reviewed pursuant to the examination. It was noted that during his time in Vietnam, the veteran described a firefight in which a mortar went off nearby and threw him to the ground with such force that he suffered a concussion. The veteran did not specifically refer to any sapper attacks at Tan Son Nhut. The diagnosis was PTSD. The Board notes that the veteran has not been afforded a VA examination that included an etiological opinion, after a review of his entire claims file, as to his claim for service connection for PTSD. Additionally, the evidence presently includes a verified stressor as noted above. Thus, the Board finds that a new examination should be scheduled to determine whether the veteran meets the diagnostic criteria of PTSD. 38 C.F.R. § 3.159(c)(4). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Further, the Board observes that the law is clear that VA will not deny a (PTSD) claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, and allowing him/her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA must make all reasonable efforts to obtain the relevant evidence. 38 C.F.R. § 3.159(c). As well, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). In this case, the RO has not specifically sent a duty to assist letter as to a claim for service connection for PTSD related to a personal assault. As noted above, the veteran has also essentially claimed that he was assaulted during his period of service. As the matter is being remanded, the RO should send the veteran an appropriate stressor development letter providing full notice with regard to development of his claim for service connection for a psychiatric disorder related to a personal assault. Accordingly, the issue is REMANDED for the following: 1. In accordance with the provisions of M21-1MR, IV.ii..1.D.17.g and III.iv.4.H.30.b, the RO should send the veteran an appropriate stressor development letter. The veteran should also be notified that in-service personal assault may be corroborated by evidence from sources other than the service records, as defined in 38 C.F.R. § 3.304(f)(3). All specific examples of alternative sources of evidence listed in section 3.304(f)(3) must be included in the notification to the veteran. The RO should also send the veteran a new VA Form 21-0781a, Statement in Support of Claim for Service Connection for Post Traumatic Stress Disorder Secondary to Personal Trauma, and request he complete it with as much specificity as possible. The RO should inform the veteran that if he fails to return any form that would provide details regarding the in-service stressor event or fails to provide information useful to verifying this event, VA will have no choice but to proceed to decide the case based on the evidence of record. An appropriate period of time should be allowed for the veteran to respond and/or submit additional evidence. 2. Ask the veteran to identify all medical providers who have treated him for PTSD since April 1999. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Additionally, relevant VA treatment records dating since April 1999 should be obtained. 3. Schedule the veteran for a VA psychiatric examination to determine whether he meets the diagnostic criteria for PTSD as a result of a verified in- service stressor(s) or to an alleged in- service personal assault. The RO should inform the examiner of the stressor(s) that have been verified. The examination report should include a detailed account of all pathology found to be present. The report of the examination should include a rationale for all opinions expressed. All studies or tests deemed necessary should be accomplished. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. 4. Thereafter, review the veteran's claim for entitlement to service connection for PTSD. If the claim is denied, issue a supplemental statement of the case to the veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). _________________________________________________ K. J. ALIBRANDO 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).