Citation Nr: 1007483 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-29 640 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from October 1960 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 RO rating decision that denied service connection for PTSD. 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 The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). 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 DSM-IV]; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather his alleged service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The Veteran claims service connection for PTSD based on alleged stressors in Vietnam. His service personnel records indicate that he was not awarded decorations evidencing combat. Such records show that his occupational specialties were listed as a telecommunications center operator, an area communication chief, and a communication electronics chief. The service personnel records indicate that the Veteran served in Vietnam from November 1967 to November 1968. There were notations that took part in the Vietnam Counteroffensive, Phase III; the TET Offensive; the Vietnam Counteroffensive, Phase IV; and the Vietnam Counteroffensive, Phase V. A December 1968 Special Court Martial Order that indicated that the Veteran was found guilty of Specification 2 of Charge I for being the driver of a vehicle that wrongfully and unlawfully left the scene of a collision without rendering assistance to an unknown Vietnamese male who had been struck and injured by the said vehicle. The Veteran was sentenced to forfeiture of a certain amount for six months. The Veteran's service treatment records do not show treatment for any psychiatric problems including PTSD. Post-service private and VA treatment reports show treatment for disorders including PTSD. The Veteran has reported various stressors. A November 2006 treatment report from H. Jabbour, M.D., noted that the Veteran reported that he served in Vietnam from 1967 to 1968 for one year. He stated that his unit was supporting multiple infantry units. The Veteran indicated that he witnessed firefights almost daily. He stated that he heard in communications regarding who got killed and what had happened. He stated that he had a traumatic event during service when he was accused and tried for killing a man in a traffic accident while driving a military jeep. The Veteran stated that he was accused of driving over the Vietnamese man and killing him and that he was acquitted, but that he was given a fine and suspended. He reported that he was very scared at the time of the accident and that when the locals gathered around him, he thought he would never make it out alive and was extremely frightened. A July 2007 VA psychiatric examination report noted that the Veteran reported that he underwent a Special Court Martial related to killing a Vietnamese man and that he was suspended and had a reduction in grade. The Veteran stated that he did have combat experiences. He stated that he served with the 173rd Airborne Brigade and that he was stationed at a military compound called LZ English which was in the vicinity of Bong Son, Vietnam. As to a specific stressor, the Veteran reported that he was driving a 3/4 ton vehicle that had two passengers and that as he turned a corner he thought he saw a bicycle coming. He indicated that he swerved to avoid the bicycle and that the jeep hit a curb and bounced back into the middle of the street. The Veteran reported that the Vietnamese man was dragged for a distance and that he was under the vehicle between the front and rear tires. The Veteran stated that there was a court martial, but that there was no body recovered. He related that he had to pay a fine, but the sentence of confinement and a reduction in rank was suspended. The examiner indicated that the Veteran met the DSM-IV stressor criteria. The examiner stated that the traumatic event was being court-martialed for killing a Vietnamese man, although there was no body recovered. It was noted that the Veteran expressed disappointment and a sense of betrayal by his government. The Board observes that the Veteran's incident of running over a Vietnamese man is verified by his service personnel records. Additionally, the Veteran has specifically stated that he was exposed to firefights almost daily and that he was involved in combat when he served with the 173rd Airborne Brigade in Vietnam from November 1967 to November 1968. He reported that he was stationed at LZ English which was in the vicinity of Bong Son, Vietnam. The Board observes that a mortar attack on one's unit may be accepted as a stressor event that could be verified and, in some cases, form the basis of a PTSD diagnosis. See Pentecost v. Principi, 16 Vet. App. 124 (2002). The Board notes that there is no indication in the record that there has been an attempt to verify the Veteran's reported stressors through the U.S. Army and Joint Services Records Research Center (JSRRC). Therefore, the Board is of the view that an attempt to verify the Veteran's alleged stressors (other than the vehicle incident) and to obtain relevant unit histories should be made. Additionally, the Board observes that the November 2006 treatment report from Dr. Jabbour, noted above, related a diagnosis PTSD. The Board notes, however, that there is no indication that Dr. Jabbour reviewed the Veteran's claims file in providing such diagnosis. The Board observes that the July 2007 VA psychiatric examination report noted that the Veteran's claims file had been reviewed. The examiner indicated that the Veteran met the DSM-IV stressor criteria. The examiner stated that the traumatic event was being court-martialed for killing a Vietnamese man, although there was no body recovered. The diagnoses were major depressive disorder, recurrent, and anxiety disorder, not otherwise specified. The examiner commented that the Veteran reported some symptoms of PTSD such as intrusive thoughts; nightmares; being triggered by the news; anger and irritability; social detachment; and interpersonal problems, especially in his marriage. The examiner stated, however, that the Veteran did not appear to have as "many" symptoms of avoidance. The Board observes that the VA examiner did not address the other treatment reports, including the November 2006 report from Dr. Jabbour, indicating diagnoses of PTSD. The Board observes that the Veteran does have one stressor that has been verified. Given the conflicting evidence as to whether the Veteran has an actual PTSD diagnosis, the Board finds that a new examination should be scheduled to determine whether the Veteran meets the diagnostic criteria of PTSD. 38 C.F.R. § 3.159(c)(4). Prior to any examination, any outstanding records of pertinent medical treatment should be obtained. Accordingly, these issues are REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for PTSD since his separation from service. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 2. Contact the Veteran and ask him to provide specific details for each stressful event he reports having occurred during service. The details should include names, dates, locations, unit affiliations, or any other identifying information that would assist in efforts to attempt to verify the occurrence of the reported events. The Veteran should be informed that the details in his response are very important to his claim. 3. Request that the U.S. Army and Joint Services Records Research Center (JSRRC), or other official source, investigate and attempt to verify the Veteran's alleged stressors, to specifically include almost daily firefights when he served with the 173rd Airborne Brigade in Vietnam from November 1967 to November 1968 and was stationed at LZ English which in the vicinity of Bong Son; as well as any other stressor for which the Veteran provides sufficient detail. JSRRC should also be asked to provide the histories of the Veteran's units during the time he was in Vietnam. If more detailed information is need for this research, the Veteran should be given and opportunity to provide it. 4. Schedule the Veteran for a VA psychiatric examination to determine whether he meets the diagnostic criteria for PTSD as a result of a verified stressor, to include the incident in service when he ran over a Vietnamese man while driving a vehicle. The examination report should include a detailed account of all pathology found to be present. The report of the examination should include a rationale for all opinions expressed. All studies or tests deemed necessary should be accomplished. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiner should specifically comment on the November 2006 treatment report from Jabbour. 5. Thereafter, review the Veteran's claim for entitlement to service connection for PTSD. If the claim is denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the appellant with the development of his claim. 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. (CONTINUED ON NEXT PAGE) 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).