Citation Nr: 0812758 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-11 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for frostbite and fungus of the feet. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Adjutant General's Office of Pennsylvania WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Law Clerk INTRODUCTION The veteran served on active duty from May 1952 to February 1954. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2007, the veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in May 2005, June 2005, July 2007, and October 2007. The United States Court of Appeals for Veterans Claims (hereinafter "the Court"), in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2007). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c). In this case, the veteran claims he has present residuals of a cold injury incurred during combat service in Korea. He stated he was treated for this disorder in Korea at a Norwegian aide station. The available service treatment records, including a February 1954 separation examination report, are negative for injuries due to cold weather exposure. In a May 2005 medical history the veteran also indicated that he had been provided a diagnosis of diabetes in 1953. A November 2005 statement from the veteran's private podiatrist noted, however, that it was possible that onychomycosis and skin changes were due to a frostbite episode. It is significant to note that service combat records show the veteran participated in the Third Korean Winter campaign from December 1, 1952, to April 30, 1953. The Board finds that in light of the veteran's training as a combat construction specialist his statements as to exposure to cold weather in Korea are credible. As this matter has not been adequately addressed by VA examination, further development is required prior to appellate review. As to the veteran's PTSD claim, the Board notes that service personnel records indicate that in Korea his principal duties included service as a demolition man and as a bridge specialist. Records show he served in the Headquarters and Service Company of the 13th Engineer Battalion in Korea from November 1952 to November 1953 with a six week training course in Japan from June to August 1953. Although the RO found the veteran had not provided sufficient information to allow an attempt to verify his alleged stressors, the Board finds that his statements as to having been aboard the USS General Walker when approximately four men from his unit were crushed to death while disembarking to Inchon are sufficient to warrant additional development. It is significant to note that service records show that he arrived in Inchon on November 14, 1953. The veteran also provided additional information in a December 2005 statement with the names of fellow servicemen he knew who were killed in Korea including a serviceman named S. from Long Island who was killed in February 1953. Therefore, additional action is required to attempt to verify the veteran's stressors. For PTSD claims, VA law provides that service connection 'requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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. . . .' 38 C.F.R. § 3.304(f) (2007). Section 4.125(a) of 38 C.F.R. incorporates the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) as the governing criteria for diagnosing PTSD. In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court held that VA had adopted the 4th edition of the DSM-IV and noted that the major effect was that the criteria changed from an objective 'would evoke ... in almost anyone' standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard requiring exposure to a traumatic event and response involving intense fear, helplessness, or horror. The Court further held the sufficiency of a stressor was now a clinical determination for an examining mental health professional. Id. at 140, 141. In Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court held that a veteran need not corroborate his actual physical proximity to (or firsthand experience with) and personal participation in combat. See also Suozzi v. Brown, 10 Vet. App. 307 (1997) (holding that 'corroboration of every detail [of a claimed stressor] including the appellant's personal participation' is not required; rather an appellant only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure). Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be taken to attempt to verify the veteran's claimed stressor events, to include the incident involving the USS General Walker in November 1953 and the deaths of servicemen identified in his December 2005 statement. As many requests as are necessary to obtain any relevant records must be taken, unless further efforts would be futile. 2. If, and only if, one or more of the veteran's stressors are verified he should be scheduled for a VA psychiatric examination for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the veteran has PTSD as a result of a verified event in service. The examiner should be informed as to which of the claimed stressors or identified events have been verified. Prior to the examination, the claims folder must be made available to the examiner for review. A notation to the effect that this review took place should be included in the report. The opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for any opinions expressed, should be set forth in the examination report. 3. The veteran should be scheduled for a VA examination by an appropriate physician for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that any present disability of the feet was incurred as a result of active service. It should be noted that service records show the veteran participated in the Third Korean Winter campaign from December 1952 to April 1953 and that he is presumed to have been exposed to cold weather. 4. 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 claims. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran 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). _________________________________________________ T.L. DOUGLAS 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 your appeal. 38 C.F.R. § 20.1100(b) (2007).