Citation Nr: 0822863 Decision Date: 07/08/08 Archive Date: 07/17/08 DOCKET NO. 01-00 033A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Washington State Department of Veterans Affairs ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The veteran had active service from September 1972 to July 1980. Service connection is in effect for occasional tinnitus, residuals of right middle finger laceration, and bilateral hearing loss, each evaluated as 0 percent disabling. A 10 percent disability evaluation has been assigned for those service-connected disorders in combination, under 38 C.F.R. § 3.324. The veteran has also been awarded a permanent and total disability rating for the purpose of non-service- connected disability pension, effective from August 2001. This matter came before the Board of Veterans' Appeals (Board) from a November 1999 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for PTSD. In March 2004, the Board remanded this matter for further evidentiary development. 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 The veteran contends that he has PTSD, essentially based upon two reported in-service stressor events. First, he has reported that, while stationed onboard the USS Proteus in Guam in 1973, he witnessed his friend, "Gunny", who was part of the Marine detachment on the vessel, commit suicide by shooting himself in the head. Second, he reported that in 1975 or 1976 while stationed onboard the USS Samuel Gompers, he was awakened in the middle of the night to participate in a firefighting detail on the nearby USS Okinawa. He asserts that he assisted in putting out the fire and helped to retrieve dead bodies from the Okinawa. 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 the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DMS-IV)); a link, established by medical evidence, between the veteran's 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). The record reflects that PTSD has been diagnosed in various VA treatment records dated from 1998 through 2007, on a VA examination dated in June 2000, and in an October 2001 letter from the veteran's treating VA psychiatrist. The diagnosis of PTSD has been essentially based upon the veteran's personal accounts of two in-service stressors: (1) having witnessed a Marine commiting suicide aboard the USS Proteus; and (2) having helped to retrieve sailors' burned bodies after assisting in fighting a fire aboard the USS Okinawa. In March 2004, the Board remanded this matter to the RO/AMC and requested that attempts be made to verify the veteran's reported in-service stressor events. Service personnel records show that the veteran served aboard both the USS Proteus, from April 16, 1973, to June 17, 1974, and the USS Samuel Gompers, from January 3, 1976, to October 14, 1977. First Claimed Stressor With regard to the veteran's first reported stressor, the Board notes that the AMC received, in March 2007, a copy of the decklog from the USS Proteus (AS-19) from November 12, 1973, shows that a named Lance Corporal (LCPL) "suffered a gunshot wound in the right temple." The entry further indicated that "[f]irst aid was administered by the ships Hospital Corpsman and ships medical officer", and that one hour later the LCPL was pronounced dead. It is thus clear from the Proteus decklog that the event occurred and that, although the individual involved was an LCPL and not a Gunnery Sergeant (or "Gunny)," he was a Marine, as described by the veteran. Moreover, there appears to be no doubt that the veteran was onboard the USS Proteus (a submarine tender with a complement of more than 1000 crew) at the time the incident occurred. However, as correctly reported by the AMC in its March 2008 Supplemental Statement of the Case (SSOC), the report which was furnished does not place the veteran at the scene of the shooting. In a Statement in Support of Claim (on VA Form 21- 4138) dated June 7, 2001, the veteran said he was present when the shooting occurred, had parts of the decedent's head blown onto him, was held under arrest during the initial investigation, and was taken before the ship's Captain after the initial questioning and accused by the Marine Major of having "pulled the trigger." He said he was "later cleared of any wrongdoing." Based upon the veteran's detailed account of the event, it appears that the investigation of such a serious matter, which he said was dealt with by the Captain of the veteran's ship and a Major in the Marine detachment, would have generated a report of the incident in addition to the deck log entry quoted above. Regrettably, no information of that nature was furnished to the AMC. Second Claimed Stressor Turning to the veteran's second reported stressor, a copy of the 1976 Command History Report for the USS Samuel Gompers (AD-37) was received in November 2007 from the Naval Historical Center, showing that, from 2215 on January 7, 1976, to 0318 on January 8, 1976, crewmembers from the USS Samuel Gompers assisted in putting out a "large Class Alpha fire" onboard the USS Okinawa (LPH-3), which was moored across the pier. It was also noted that the ship's mess decks were opened for the feeding of all personnel of both ships involved in fighting the fire. With regard to this claimed stressor, it is clear that the occurrence of the fire onboard the USS Okinawa and the assistance of crewmembers of the USS Samuel Gompers in putting out the fire has been verified, and the veteran was onboard the Samuel Gompers at the time of that incident. However, as correctly reported by the AMC in its March 2008 SSOC, the report which was furnished does not verify that any crewmembers of the Okinawa died as a result of the fire, or whether any crewmembers of the Gompers assisted with retrieving any bodies. Since prior diagnoses of PTSD have been based, in part, on the veteran's claim that he helped retrieve bodies after the fire onboard the USS Okinawa, an additional attempt to verify this claim should be made, to include requesting a copy of the deck log and/or command history of the USS Okinawa covering January 7-8, 1976. Social Security Disability Records In a March 2004 statement (VA Form 21-4138), the Washington State Department of Veterans Affairs indicated that it is the appointed custodian for the veteran, and that the veteran reported beginning to receive Social Security Administration (SSA) benefits two months before. There is no additional information in the claims file to show the type of Social Security benefits the veteran might be receiving. VA's duty to assist requires obtaining a copy of the decision awarding disability benefits and the supporting medical records upon which an SSA award was based. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Thus, any such SSA records showed be obtained on remand. Medical Nexus Examination After the additional stressor information is obtained, and if sufficient corroboration or verification of one or the other of the veteran's claimed stressor events is secured, a VA medical opinion will be needed to provide professional evidence of a causal relationship between the confirmed stressor(s) and the veteran's current psychiatric disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4). The Board regrets the additional delay in completing a decision in this matter, and appreciates the efforts undertaken by the AMC thus far, but, in view of the foregoing, the case is REMANDED for the following action: 1. Contact the Social Security Administration and determine whether the veteran has been awarded disability benefits. If so, request copies of all records relied upon in awarding the veteran SSA benefits. A copy of any Administrative Law Judge's decision, if done, should also be obtained. All efforts to obtain these records must be documented for the record. If no such records are available, it must be so stated, in writing, for the record. 2. Contact the U.S. Army and Joint Services Records Research Center (JSRRC), or other appropriate agency, as deemed apprppriate, and seek to obtain specific details regarding the fire onboard the USS Okinawa (LPH-3), which occurred on the night of January 7-8, 1976. Specifically, request details regarding any casualties resulting from the fire, and the specific role that members of the USS Samuel Gompers (AD-37) played in assisting the USS Okinawa. (Previous research has produced records from the Gompers, but not the Okinawa.) Request that if no such records are available, the non-existence or unavailability of such records be certified. 3. After receipt of the responses to the additional stressor verification efforts, the RO/AMC should again assess the validity of the claimed stressors. If it is determined that one or both stressors is satisfactorily verified, schedule the veteran for a VA psychiatric examination. All indicated tests and studies are to be performed. The claims folder must be made available to the examiner for review of the case. 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 a diagnosis of PTSD have been satisfied. b. Any diagnosis of PTSD must be in accordance with the DSM-IV. c. If PTSD is diagnosed, the examiner should specifically address whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability), or unlikely (i.e., a probability of less than 50 percent) that the diagnosed PTSD is a result of one or more verified in-service stressors. 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. e. If the above questions cannot be determined on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the reviewer should clearly and specifically so specify in the report, with an explanation as to why this is so. 4. After completing the requested action, and any additional notification and/or development deemed warranted, re- adjudicate the claim. If the benefit sought on appeal remains denied, furnish the veteran and his representative an appropriate SSOC and allow him a reasonable period of time to respond. The veteran 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 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 final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).