Citation Nr: 1006344 Decision Date: 02/19/10 Archive Date: 03/02/10 DOCKET NO. 04-23 749 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Katie Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to February 1970, including service in the Republic of Vietnam. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Houston, Texas RO. Subsequently, the Veteran moved to Louisiana, and original VA jurisdiction was transferred to the RO in New Orleans, Louisiana. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in January 2007. A transcript of that hearing has been reviewed and associated with the claims file. This claim was before the Board and was remanded in November 2007 for further development. In Clemons v. Shinseki, 23 Vet. App. 1 (2009) the Court held that, when the Veteran specifically requests service connection for PTSD, but the medical record includes other psychiatric diagnoses, the claim may not be narrowly construed as only a PTSD claim, and should be considered as a claim for a psychiatric disorder. In light of this holding, and the fact that the Veteran has been diagnosed with various psychiatric disorders, the issue on the title page has been recharacterized. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board observes that in November 2007 the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, was remanded for further development. Regrettably, upon careful review of the record, the Board is of the opinion that additional action by the RO/AMC is requisite prior to any further review of this claim. The Veteran's service personnel records disclosed that he served in the Republic of Vietnam from July 26, 1967, to March 12, 1969, and was assigned to Company, Communications Company, Headquarters Battalion, 1st Marine Division, Fleet Marine Force (FMF), with participation in counter insurgency operations. The Veteran also reported that he was stationed in Vietnam, northwest of DaNang, attached to the 1st Marine Division, 5th Marines, 4th FSR. According to VA treatment records from November 2002 and January 2004, the Veteran claimed to have been influenced by the following stressors while serving in Vietnam: (1) seeing people whom he had befriended get killed the next day, then seeing their remains; (2) stacking up bodies and seeing them bulldozed into mass graves; (3) seeing body bags; (4) observing the mutilation of bodies in Vietnam; and (5) picking up bodies after combat and placing them in body bags. At the time of the November 2007 Board remand, the information of record indicated that no attempts had been made to corroborate the Veteran's alleged stressors through the appropriate means; thus, such development was prescribed upon remand. In compliance with the November 2007 directives, the RO sent the Veteran notice letters in December 2007 and August 2008, and asked him to provide more specific information regarding each of his reported stressors, including the approximate date with a 2-month date range) and location the stressful incident occurred. The Veteran did not respond to either notice sent by the RO. VA informed the Veteran that he had not replied to the December 2007 or August 2008 notice letters in a November 2009 Supplemental Statement of the Case. In this context, pursuant to 38 C.F.R. § 3.159 (c)(2)(i), the Veteran must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal agency or department custodians. If requested by VA, the Veteran must provide enough information to identify and locate existing records. Specifically, in the case of records requested to corroborate a claimed stressful event in service, the Veteran must provide information sufficient for the records custodian to conduct a search of the corroborative records. Here, the Veteran failed to provide enough information for the RO to conduct a search, despite being invited to provide more specific information on two separate occasions in December 2007 and August 2008. The Board notes that the duty to assist is not a one-way street, or a blind alley, and the Veteran must be prepared to cooperate with the VA's efforts. Olson v. Principi, 3 Vet. App. 480, 483 (1992). Hence, the Veteran has not cooperated. Therefore, the Board finds that the RO substantially complied with the November 2007 remand directives, and that no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). See also Chest v. Peake, No. 2007-7303, 283 Fed. Appx. 814 (Fed. Cir. July 21, 2008) (unpublished disposition) ("substantial" compliance, rather than "complete" or "absolute" compliance is the correct legal standard to be employed when determining whether remand instructions were complied with). Notably, however, the Board does find that the Veteran's unit histories should be obtained upon remand. The Veteran alleged that one of his stressors was that the units he was attached to came under mortar fire and ambush which made him fear for his life. The Veteran's personnel records verify that the Veteran's military occupational specialty (MOS) was that of a wireman while stationed in Vietnam, and was attached to the Communications Company, Headquarters Battalion, 1st Marine Division, Fleet Marine Force (FMF) from July 1967 to November 1967, January 1968 to March 1968, February 12, 1969 to February 31, 1969, and from March 8, 1969 to March 10, 1969. The Veteran also reported that he was stationed in Vietnam northwest of DaNang, attached to the 1st Marine Division, 5th Marines, 4th FSR. Upon remand, the RO should attempt to obtain the Veteran's unit histories by contacting the National Personnel Records Center (NPRC) or other appropriate entities. At the Veteran's September 2009 VA examination, the Veteran stated that he went to a private counselor for approximately two years in Pasadena, Texas. The claims file is void of any private treatment records and it appears that no attempt has been made to obtain these records. Without such records, the Board is precluded from proper appellate review of the Veteran's claim. As such, the Board finds that a remand is necessary to obtain the outstanding private treatment records and associate them with the claims file. Accordingly, in order to give the Veteran every consideration with respect to his claim and appeal and to ensure due process of law, the case is REMANDED for the following actions: 1. After securing any necessary release forms, with full address information, all records of medical treatment for PTSD, which are not currently associated with the Veteran's claims file should be requested. Specifically, records from a private counselor in Pasadena, Texas, should be requested. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. 2. Obtain the Veteran's unit histories to verify if the units the Veteran was attached to (Communications Company, Headquarters Battalion, 1st Marine Division, Fleet Marine Force (FMF); and the 1st Marine Division, 5th Marines, 4th FSR) were subject to ambushes or mortar attacks and whether they experienced casualties or have wounded reports. Any attempts to obtain the unit history reports should be documents in the claims file. 3. After receiving a response from NPRC, or any other entity contacted, the RO should make a determination as to whether the stressor was corroborated, to include consideration as to whether the Veteran was involved in combat. If the RO determines that the Veteran was involved in combat, then corroborative evidence is not required regarding any combat-related stressor. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal, in light of all pertinent evidence and legal authority. If the determination remains adverse, the Veteran and his representative should be furnished a supplemental statement of the case, to include the provisions of 38 C.F.R. § 3.156(a), and afforded an appropriate 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. 2009). _________________________________________________ DEBORAH W. SINGLETON 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).