Citation Nr: 0812956 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-13 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD), also claimed as depressive disorder and anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Manchester, New Hampshire Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the veteran submitted additional evidence after the final adjudication of his claim by the RO. In August 2007, the veteran waived RO consideration of his additional evidence. In August 2007, the veteran presented personal testimony during a videoconference hearing before the undersigned 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 you if further action is required on your part. 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 evidence not of record that was necessary to substantiate his claim and of which parties were expected to provide such evidence by correspondence dated in July 2006. The United States Court of Appeals for Veterans Claims, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. It was further noted that regarding the disability-rating element, in order to comply with section 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided, that is necessary to establish a disability rating for each of the disabilities contemplated by the claim and allowed under law and regulation. Notice regarding these elements was provided to the veteran in correspondence dated in July 2006. In July 2006, VA was informed through official channels that the veteran's service personnel records were destroyed by fire. The Board is aware that it has a heightened duty to assist the veteran in development of his claim in cases, such as this, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It does not appear that the veteran has been informed that his service personnel records might have been destroyed by fire. The veteran should be informed of ways in which he could assist VA in reconstructing the records. The revised VCAA duty to assist also 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. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). In this case, service records show that the veteran served in Korea after the signing of the Armistice in 1953. Service treatment records are negative for any signs, symptoms, or diagnoses of a psychiatric disorder. In October 1956, the veteran submitted numerous lay statements from fellow soldiers who testified that the veteran was involved in a vehicle accident while serving in Korea. A jeep overturned and pinned the veteran's leg. The veteran was granted service connection for residuals of a leg injury as a result of the in-service accident via an RO rating decision in July 1957. VA examinations in January and November 1956, July 1957, October 1958, March 1973, February 1974, March 1976, and March 1978 did not reveal any psychological symptoms. During VA medical visits in July 2004 and January 2005, the veteran denied experiencing depression. From March 2005 through October 2006, the veteran attended a VA PTSD group regularly. A VA treatment note signed by M.J., D.O., from January 2006 reveals a diagnosis of active and present PTSD. During an August 2006 visit with a VA social worker, the veteran recounted having to dig fox holes and finding body parts of enemy combatants. He also spoke of seeing destroyed vehicles with dead enemy soldiers. VA medical correspondence from R.D., M.S.W., dated in May 2007 provides a diagnosis of PTSD as a result of severe traumatic experiences incurred during active service in Korea. During his August 2007 videoconference hearing before the undersigned Veterans Law Judge, the veteran testified that while serving in Korea, he witnessed a few accidents. In one accident a jeep ran off the road and almost tumbled down the side of a hill. Another time, the veteran stated that a jeep flipped over and pinned him and another solder. He experienced frequent small arms fire while serving at Camp Casey. He reiterated his experience of digging a hole and uncovering numerous body parts. After leaving active duty, he told doctors about what he saw, and all of the doctors told him that his thoughts would pass. He related that while in Korea, he was assigned to the 7tIh Division, 31st Infantry, Intelligence and Reconnaissance. The Board notes that the veteran has previously been awarded service connection for a leg disability that resulted from a jeep accident that occurred during his active service. The veteran has contended that the jeep accident could be a possible PTSD stressor. The Board also observes that there is no evidence of any attempt to verify his other claimed stressors. However, regardless of whether the veteran's other claimed stressors can be verified, a medical examination is required to determine if the veteran currently has a psychiatric disorder as a result of being pinned by a jeep while serving in Korea. In view of the aforementioned considerations, the case is REMANDED for the following action: 1. The veteran must be provided notification by the AMC/RO that his service personnel records might have been destroyed by fire. He should be informed of the ways he can assist in reconstructing his record, to include (but not be limited to) submitting copies of his service medical records in his possession; VA military files; statements from medical personnel who treated him during service; statements from people who served with the veteran who had personal knowledge of his illness or injury; state or local accident and police reports; employment physical examinations within one year from his discharge from service; medical evidence from hospitals, clinics, and private physicians; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examination records. 2. The AMC/RO is to provide the veteran an additional opportunity to present specific information on his claimed stressors, including when the stressor occurred, where the stressor occurred, and any other particulars that may aid in confirming his claim. 3. Thereafter, the AMC/RO is to compile all information, including any statements provided by the veteran and submit this information to the U.S. Army and Joint Services Records Research Center (JSRRC). JSRRC should be requested to make an attempt to verify events related to the veteran's claims that he experienced attacks. Any response received from that organization is to be associated with the claims folder. 3. Thereafter, the record should be reviewed and specific determinations provided as to which specific stressor events, if any, have been verified. In reaching these determinations, any credibility questions raised by the record should be addressed. The veteran should be notified of these determinations and afforded the opportunity to respond. 4. The veteran should be scheduled for examination by a psychiatrist for an opinion as to whether there is at least a 50 percent probability or greater that he has a present psychiatric disorder (under DSM-IV criteria) related to a verified event in service. The examining psychiatrist should be informed as to which of the specific claimed stressor events have been verified. Prior to the examination, 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. Opinions 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 the opinions expressed, should be set forth in the examination report. 5. 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 claim. 6. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the veteran should be furnished an appropriate 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 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. 2005). _________________________________________________ RENÉE M. PELLETIER 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).