Citation Nr: 0813491 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-19 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The veteran served on active duty from August 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the above claim. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. The veteran was diagnosed with PTSD by VA doctors in February 2004 and began monthly supportive group therapy sessions for this condition. VA progress notes attribute the veteran's PTSD to trauma and combat experience in Vietnam. In December 2004, the veteran underwent a VA examination, which confirmed the diagnosis of PTSD. The examiner attributed this condition to stress exposure during combat activities in Vietnam, noting that the veteran's "exposure to military and combat activities in Vietnam is considered high." The examiner reported that the veteran witnessed the trauma of combat and now has nightmares, flashbacks, sleep disturbances, and feelings of anger; is hypervigilant; and has trouble concentrating. The veteran is now seeking service connection for his currently diagnosed PTSD. To establish entitlement to service connection for PTSD a veteran must provide 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2007). This case turns on the second and third required elements listed above, namely the occurrence of an in-service stressor and a medical nexus opinion linking current symptoms to the veteran's in-service stressors. Although the veteran has been diagnosed with PTSD, and doctors have suggested that his PTSD is generally related to exposure to combat in Vietnam, in order for PTSD to be service connected, the diagnosis must be based on a corroborated in-service stressor. Accordingly, the veteran's stressors must first be verified before an examination may link his PTSD to his military service. The evidence required to establish the occurrence of an in- service stressor depends upon whether the veteran engaged in combat with the enemy. Under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), any veteran who engaged in combat during active service may submit satisfactory lay or other evidence as sufficient proof of service connection, despite the fact that there is no official record of the in-service stressor. This presumption, however, does not warrant an automatic grant of service connection, but rather, eases the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). The evidence fails to show that the veteran was awarded any medals or decorations for valor, combat experience, or combat injuries, and does not otherwise show that he had actual combat with the enemy. Further, his DD-214 shows no certificates or awards denoting participation in combat. The Board finds, therefore, that the combat presumption is not applicable to the veteran's claim, and corroborating evidence of the claimed events having actually occurred is required to support his claim. See 38 U.S.C.A. § 1154(b); Doran v. Brown, 6 Vet. App. 283 (1994). The veteran contends that his PTSD was caused by the following in-service stressors: 1) in April 1970, while in Tay Ninh, he saw a young boy run over and killed by a truck, with his body slung out the back; 2) in August 1970, while in Tay Ninh, he saw an elderly woman run over by a truck, causing her body to be torn apart and making the veteran miss his mother; 3) in October 1970, while in Quan Li, he saw a bus filled with passengers hit a land mine, causing an explosion that burned the passengers alive; 4) he witnessed a fellow soldier, D. P., get caught in machinery and almost lose his leg, and 5) he was fired on by enemy forces while delivering ammunition to the armored division. The veteran has also reported some feelings of survivor guilt, which have been triggered by the Persian Gulf War. Stressor verification requires that the veteran provide, at a minimum, a stressor that can be documented, the location where the incident took place, the approximate date of the incident, and the unit of assignment at the time the stressful event occurred. See M21-1MR, Part IV.ii.1.D.14.d. The veteran has reported that he served with the 379th Transit Company No. 1 from January 1970 to March 1971. The veteran has also provided the approximate dates and locations of his reported stressors. The stressors described by the veteran, however, may not be verifiable insofar as they may not be documented events. Regardless of whether they are verifiable, efforts to corroborate his reported in-service stressors, including efforts to obtain his personnel records, should be undertaken before the Board renders a decision in this case. If the RO is able to verify any of the reported stressors, the veteran should also be provided with a new VA examination. Insofar as the December 2004 VA examiner's opinion was not based on corroborated stressors, a new examination is required once the stressors are verified to provide a medical nexus between current symptoms of PTSD and a corroborated in-service stressor. Finally, any recent VA treatment records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the veteran's treatment records for PTSD from the Birmingham VA Medical Center, dated since September 2004. 2. Make arrangements to obtain a complete copy of the veteran's personnel records. 3. Thereafter, the RO via the AMC should request that U.S. Army and Joint Services Records Research Center (JSRRC) provide any available information that might corroborate the veteran's alleged in-service stressors from his time served with the 379th Transit Company No. 1 from January 1970 to March 1971. JSRRC should be provided with copies of the veteran's personnel records obtained showing service dates, duties, and units of assignment, as well as his PTSD Questionnaire received in October 2004, a copy of his VA treatment records from February 2004 to April 2005, a copy of his December 2004 VA examination, and any additional relevant evidence associated with the claims folder as a result of this remand. 4. If, and only if, the veteran's in- service stressors are verified, the RO should provide him with a VA psychiatric examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted. The examiner must express an opinion as to whether the veteran meets the criteria for PTSD contained in DSM-IV, and if he meets such criteria, whether PTSD can be related to the stressor or stressors reported by the veteran and established as having occurred during active service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Thereafter, readjudicate the veteran's claim on appeal. If the claim remains denied, provide the veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ L.M. BARNARD 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).