Citation Nr: 1008487 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-20 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The Veteran had active military service from April 1966 to April 1969. This appeal to the Board of Veterans' Appeals (Board) arises from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia which denied service connection for PTSD. The Board has recharacterized the issue of entitlement to service connection for PTSD to more broadly include entitlement to service connection for an acquired psychiatric disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In June 2009, the Veteran testified at a hearing before the undersigned Veteran's Law Judge at the local regional office. 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 As noted in the Introduction, the Board has recharacterized this claim to encompass entitlement to service connection for an acquired psychiatric disorder pursuant to Clemons, supra. In the case at hand, the Board notes that the Veteran's VA treatment records reflect current diagnoses of PTSD and depression. The Veteran contends that he should be service-connected for PTSD as a result of in-service stressors, including constant rocket and mortar attacks. Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The Veteran has a current diagnosis of PTSD. However, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). "Just because a physician or other health professional accepted appellant's description of his Vietnam experiences as credible and diagnosed appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for PTSD." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Instead, the Board must also consider whether further action is needed for such corroboration, to include contacting the United States Joint Services Records Research Center (JSRRC) (previously the U.S. Armed Services Center for Research of Unit Records). The Board has reviewed the Veteran's service personnel records, but finds no indication that he was exposed to combat and no information to confirm his claimed stressors. The Veteran's DD 214 shows that he served on active duty in the United States Army from April 1966 to April 1969, including service in the Republic of Vietnam. His military occupational specialty was a radio operator and carrier. He received the Vietnam Service Medal, the Vietnam Campaign Medal with device, the National Defense Service Medal and an Army Commendation medal, but did not receive any decorations which are awarded exclusively for involvement in combat (i.e., the Purple Heart Medal or the Combat Infantryman Badge). The Veteran's service personnel records show that he was in Vietnam from August 1968 to April 1969. The Board notes that the Veteran was assigned to HHC, 501st Signal Battalion (Abn) from August 1968 to September 1968. He was subsequently assigned to Company A, 501st Signal Battalion (Abn) from September 1968 to April 1969. The Veteran contends that while stationed at Fire Support Base Geronimo in Hue, he witnessed a helicopter come under attack and that the rocket attack killed the pilot and two crew members. The Veteran also contends that right after he arrived in country at Camp Eagle, he came under rocket attack and was forced into a sand bunker for a half hour or so. In addition, the Veteran contends that entire time he was at Fire Support Base Geronimo in Hue he came under continuous rocket and mortar attacks. Sometime this occurred daily or every other day. During his June 2009 hearing before the undersigned, the Veteran 2009 provided more detailed information regarding his claimed stressors. Upon discussion with the undersigned, the Veteran thought the bunker incident probably occurred right around his arrival in Vietnam, between August and October 1968. The Veteran also testified that he thought the helicopter incident probably happened around December 1968. Similarly, if the Veteran's presence in an area of documented combat can be verified (such as the Veteran's claimed exposure to near constant rocket attacks), this evidence would also be sufficient to corroborate that he was exposed to the above-described attack, or was otherwise threatened thereby, even without the explicit documentation of his participation in specific historic events. See Pentecost v. Principi, 16 Vet. App. 124 (2002). Therefore, as the Veteran has described potentially verifiable in-service stressful events, the case must be remanded to attempt to corroborate the occurrence of the identified incidents. The Court of Appeals for Veterans Claims has long held that the duty to assist includes requesting information and records from the Social Security Administration (SSA) which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); see also 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). The Board notes that the claims file contains a letter from the SSA showing the Veteran was granted disability benefits beginning in May 2007. It is unclear as to what the Veteran is receiving SSA disability benefits for and there is no indication in the claims file that the records associated with the SSA disability application were requested or any effort was made to obtain them. The application and associated records may bear directly upon the issues currently before the Board and must be obtained. The AMC should therefore contact the Social Security Administration and take all necessary attempts to obtain all records related to the Veteran's application for Social Security Administration disability benefits or any award of benefits related thereto. 38 C.F.R. § 3.159; see also 38 C.F.R. § 3.159(c)(2) (when attempting to obtain records in the custody of a Federal department or agency, including the Social Security Administration, VA must make as many requests as are necessary to obtain relevant records; VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). Accordingly, the case is REMANDED for the following action: 1. The AMC should request, directly from the SSA, complete copies of any disability determination(s) it has made concerning the Veteran, as well as copies of the medical records that served as the basis for any such decision(s). All attempts to fulfill this development must be documented in the claims file. If the search for any such records yields negative results, that fact should be clearly noted, with the AMC either documenting for the file that such records do not exist or that further efforts to obtain them would be futile, and the Veteran should be informed in writing. 2. The AMC should then review the file and prepare a summary of the Veteran's claimed stressors of (1) coming under rocket attacks after his arrival in country at Camp Eagle between August 1968 and October 1968, and (2) a helicopter being attacked by rockets and killing the pilot and two crew members between November 1968 and January 1969. This summary, together with a copy of the Veteran's DD Form 214 and any other documents the AMC deems to be relevant, should be sent to the JSRRC. That agency should be asked to provide any information that might corroborate the Veteran's alleged stressors. 3. After undertaking any other development deemed appropriate, to include examination if any alleged in- service stressor is found to be verified, consider the issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD in light of all information or evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an 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 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). _________________________________________________ S. BUSH Acting 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).