Citation Nr: 1004065 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 06-09 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active duty from February 1967 to February 1969. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a February 2008 decision, the Board reopened the Veteran's previously denied claim for service connection for PTSD and remanded the reopened matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for further evidentiary development. During the pendency of the Veteran's case, the United States Court of Appeals for Veterans Claims (Court) recently held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). As such, the Board has recharacterized the Veteran's claim on appeal to more accurately reflect the Court's holding in Clemons. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for PTSD. Service connection for PTSD currently requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2009). The Veteran asserts that he has PTSD due to active service. He particularly points to exposure to rocket and mortar attacks on his unit, particularly while in Phu Bai, between June 1967 and July 1968, and his duties as a helicopter maintenance repairman that required him to clean up fellow soldiers' blood and flesh from the helicopters. He describes daily exposure to rocket and mortar attacks during his time with the 15th T.C. Battalion, 1st Calvary that, he has indicated, led to his seeing dead men in "bits and pieces", bodies, and wounded men. He did not provide any specific time frame or dates for the attacks. September 2004 and July 2005 signed statements from T.G.P., a Vet Center social worker, are to the effect that the Veteran had combat-related PTSD consistent with his reported traumas of exposure to near daily rocket and mortar fire, and witnessing dead and wounded soldiers and Vietnamese from July 1967 to July 1968 while assigned to the 1st Cav. At Saigon, Bien Hoa, Ahn Khe, Chu Chi, and Hue. The Vet Center records further indicate that his unit was exposed to nearly daily rocket and mortar attacks, he saw dead and wounded American soldiers and Vietnamese, and that several pilots and door gunners he was close to in his unit were wounded and killed. No details were provided. He recalled (in a June 2006 VA treatment record) seeing "bagged bodies" but said that he blocked many traumatic memories. Service personnel records indicate that the Veteran's military occupation in service in the Republic of Vietnam was as helicopter maintenance/repair, and that he served in Vietnam from August 1967 to July 1968. His service personnel records show that he served with the 15th T.C. Battalion, 1st Calvary Division from June 1967 to July 1968 and participated in the Vietnam Counteroffensive Phase III and TET Counteroffensive campaigns. In May 2006, the Veteran submitted copies of photographs purportedly taken in Vietnam that indicate where he lived in Phu Bai, when he was "constantly hit by mortar fire". In a May 2006 written statement, D.B., a service comrade, said that the Veteran described the buildings and locations in Phu Bai, the events that happened, and the actions taken in exactly the way that D.B. recalled them. In September 2008 and March 2009, the U.S. Army and Joint Services Records Research Center (JSRRC) responded to the RO's requests to confirm the Veteran's alleged stressful events concerning indicating that it could not verify the stressor without additional specific information. The JSRRC provided available information based on review of Vietnam Station lists, dated April and November 1967 that recorded the Headquarters of the 15th Transportation Battalion as located at An Khe with the 1st Calvary Division. The recorded attacks against Phu Bai in the period ending April 30, 1967, included on April 27, 1967, Phu Bai airfield received a mortar attack with no causalities reported and, on May 3, 1967, it received a mortar attack, with no casualties or damage reported. On February 15, 1968, Phu Bai was attacked by mortars with no damage or casualties reported and, on February 18, 1968, Phu Bai was hit by rockets that damaged a mess hall and truck with light damage to the battery orderly room and day room and no casualties reported. Thus, the Veteran was not in Phu Bai when the 1967 incidents occurred, and there were no reported casualties in the February 1968 incidents at Phu Bai. However, the Court held in Pentecost v. Principi, 16 Vet. App. 124, 128-29 (2002) that, while the veteran's unit records did not specifically show that he was present during the alleged rocket attacks, "the fact that he was stationed with a unit that was present while such attacks occurred would strongly suggest that he was, in fact, exposed to the attacks." Here, the JSRRC has verified that two mortar and rocket attacks occurred on Phu Bai airfield in February 1968 although there were no reported casualties. The next question presented is whether a stressor such as reported by the Veteran is clinically considered to be of sufficient severity to warrant a valid diagnosis of PTSD, consistent with the diagnostic criteria in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (1994) (DSM-IV). See Cohen v. Brown, 10 Vet. App. 128 (1997). VA medical records, dated from October 2000 to February 2009, include diagnoses of, and treatment for, PTSD. The record does not include a VA examination of either the Veteran's claimed PTSD, nor does it indicate that a PTSD diagnosis has been made pursuant to DSM-IV on the basis of a verified history of the Veteran's in-service stressors. See, e.g., West v. Brown, 7 Vet. App. 70, 77-78 (1994). As a result, the Board is of the opinion that the Veteran should be afforded a VA examination to determine the etiology of any such claimed psychiatric disorder found to be present. See Clemons, supra. As well, any additional VA and non-VA medical records, dated since February 2009, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records regarding the Veteran's treatment at the VA medical facilities in Lake City and Gainesville, Florida, for the period from February 2009 to the present, and any additional private records identified by him. 2. Thereafter, schedule the Veteran for 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 indicated tests and studies should be accomplished and all clinical findings reported in detail. The examiner is advised that the Veteran served in Vietnam from August 1967 to July 1968 and maintains that he was exposed to hostile mortar and rocket fire and saw the bodies of dead soldiers. The examiner is advised that VA has verified that two mortar and rocket attacks occurred on Phu Bai airfield in February 1968, although there were no reported casualties. 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 stressors reported by the Veteran and established as having occurred during active service (i.e., mortar and rocket attacks on Phu Bai airfield in February 1968, with no reported casualties). If the Veteran is found to have a psychiatric disorder other than PTSD, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed psychiatric disorder is causally related to military 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. 3. Finally, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded a reasonable period of time in which to respond before the case is returned to the Board. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2009). _________________________________________________ P.M. DILORENZO 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) (2009).