Citation Nr: 0844612 Decision Date: 12/24/08 Archive Date: 12/31/08 DOCKET NO. 04-30 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The veteran served on active duty from February 1970 to May 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD. In a June 2007 decision, the Board denied the claim for service connection for PTSD. A timely appeal of that decision was again filed to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a joint motion for remand, requesting that the Court vacate the Board's June 2007 decision and remand the issue on appeal. In June 2008, the Court granted the joint motion, vacated the Board's June 2007 decision, and remanded the case to the Board for compliance with directives that were specified by the Court. 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 In June 2008, the Court granted the joint motion, vacated the Board's June 2007 decision, and remanded the case to the Board for additional development. The Joint Motion directed VA to make additional attempts to verify the appellant's claimed stressor event. In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R.§ 3.304(f). With respect to the third element, if the evidence shows that the veteran engaged in combat and he is claiming a combat related stressor, no credible supporting evidence is required. Id., see Doran v. Brown, 6 Vet. App. 283 (1994). A veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). 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, rocket attacks while stationed in Vietnam. 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). The veteran contends that he developed PTSD as a result of traumatic events experienced during his service in Vietnam. Specifically, the veteran stated that he was stationed in Vietnam from September 1970 to April 1971, and during that time, he saw hundreds of body bags containing dead bodies of American Soldiers and the bags were stacked up in a pile. He stated that he saw this on base in Saigon. See the veteran's statements dated in November 2003 and July 2008. The veteran stated that he was driving Marine Colonel Dingdinger, Commander of the Combined Intelligence Center, to MAC Headquarters and while driving the Colonel, he saw the body bags stacked up. He stated that he told Colonels Dingdinger and Wentworth and Command Sergeant Majors Bellivita and Metcalf about the body bags and his flashbacks while he was in service. See the veteran's statements dated in November 2003 and July 2008. In the November 2003 statement, the veteran stated that he witnessed the body bags in September 1970. Service personnel records indicate that the veteran served in the Army with the 45th Military Intelligence Company, USARPAC. His military specialty was clerk typist. He was stationed in Vietnam from July 26, 1970 to July 26, 1971. The Board finds that the agency of original jurisdiction (AOJ) should request the veteran to specify in detail additional circumstances surrounding his claimed stressor events including the date (within a two month time frame), location of the event (name of the base), the unit the veteran was assigned to at the time, and the full names of any other individuals participating in the event, and the full names of the individuals who were killed in action. The AOJ should ask the veteran to provide a two month date range for the stressor events. The veteran should be advised that this information is vital to his claim and that failure to provide the requested information may result in denial of the claim. The veteran is also advised that he is permitted to submit lay statements from individuals, such as Colonels Dingdinger and Wentworth and Command Sergeant Majors Bellivita and Metcalf, who have knowledge of the stressors events in support of his claim. After giving the veteran an opportunity to provide additional information about the stressor events, the AOJ should make an attempt to obtain credible supporting evidence of the stressor events by contacting the United States Army and Joint Services Records Research Center (JSRRC) (formerly the United States Armed Services Center for Research of Unit Records). In particular, the JSRRC should be asked to provide any information which might corroborate the veteran's statements that he saw hundreds of body bags on base in Saigon in September 1970 while he was driving Colonel Dingdinger. The Joint Motion directs the JSRRC to search for verification of the following stressor event: that the veteran saw body bags on base while he was driving Colonel Dingdinger at some time from September 1970 to September 1971 (although service records show that the veteran was only stationed in Vietnam from July 1970 to July 1971), and he told Colonels Dingdinger and Wentworth and Command Sergeant Majors Bellivita and Metcalf about the body bags and his flashbacks while he was in service. The JSRRC's search should include but not be limited to a search of the veteran's unit's morning reports. If any of the stressors events are corroborated, the Board finds that the veteran should be afforded a VA examination to determine whether the veteran currently has PTSD and if so, whether the verified stressor event is clinically considered to be of sufficient severity to warrant a valid diagnosis of PTSD. Also, subsequent to the Joint Motion for Remand, the appellant and his representative submitted additional lay evidence in support of the appellant's claim and requested that the AOJ consider the evidence and readjudicate the claim. Under these circumstances, the Board will remand this matter for consideration of the pertinent evidence and for issuance of a supplemental statement of the case reflecting such consideration. See 38 C.F.R. § 19.31 (2008). Accordingly, the case is REMANDED for the following action: 1. Request the veteran to specify in detail the circumstances surrounding his claimed stressor event including the date and location of the event, the unit the veteran was assigned to at the time, the full names of the individuals participating in the event, and the full names of the individuals who were killed in action. Ask the veteran to provide a two month date range for the stressor events. Advise the veteran that this information is vital to his claim and that failure to provide the requested information may result in denial of the claim. Advise the veteran that he may submit lay statements from individuals, such as Colonels Dingdinger and Wentworth and Command Sergeant Majors Bellivita and Metcalf, who have knowledge of the stressors events in support of his claim. 2. Prepare a summary of the veteran's claimed stressors. This summary, copies of the veteran's DD Form 214, a copy of this remand, and all associated documents should be sent to the JSRRC, Kingman Building, Room 2C08, 7701 Telegraph Road, Alexandria, VA, 22315-3802, for verification of the stressor events. The JSRRC should be asked to provide any records including morning reports which might corroborate information relating to the claimed stressor events. In particular, the JSRRC should be asked to provide any information which might corroborate the veteran's statements that he saw hundreds of body bags on base in Saigon in September 1970 while he was driving Colonel Dingdinger. The Joint Motion directs the JSRRC to search for verification of the following stressor event: that the veteran saw body bags on base while he was driving Colonel Dingdinger at some time from September 1970 to September 1971 (although service records show that the veteran was only stationed in Vietnam from July 1970 to July 1971), and he told Colonels Dingdinger and Wentworth and Command Sergeant Majors Bellivita and Metcalf about the body bags and his flashbacks while he was in service. The JSRRC's search should include but not be limited to a search of the veteran's unit's morning reports. If the JSRRC is unable to provide information regarding any of the stressors alleged by the veteran, it should provide specific confirmation of that fact. 3. If any stressor event is corroborated, arrange for the veteran to undergo a VA psychiatric examination. The veteran's claims folder must be provided to the examiner for review in connection with the examination and the examiner should be advised of the stressors which are corroborated. The examiner should perform necessary testing and render all appropriate diagnoses. If the examiner believes that PTSD is an appropriate diagnosis, the examiner must indicate whether the diagnosis conforms to DSM-IV and specify whether the corroborated stressors event is responsible. The AOJ should notify the examiner of all corroborated stressor events. For each diagnosis rendered, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., at least a 50-50 probability) that the psychiatric disorder was incurred in or as a consequence of military service. The examiner should provide a complete rationale for each opinion rendered. 4. When the development requested has been completed, reviewed the claim on the basis of the additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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. 2008). _________________________________________________ C. CRAWFORD 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) (2008).