Citation Nr: 1032298 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 08-00 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and C.R. ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing conducted before the undersigned Acting Veterans Law Judge in May 2010. A transcript of that hearing has been associated with the claims folder. The Veteran's claim was initially developed as a claim for entitlement to service connection for PTSD. However, the Veteran has received several Axis I psychiatric diagnoses, in addition to PTSD. Accordingly, and in light of the holding of United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issue on appeal as one for service connection for an acquired psychiatric disorder, to include PTSD. For the reasons set forth below, this 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 Veteran served on active duty from February 1967 to February 1969. A review of his DD 214 reflects that his military occupational specialty (MOS) was that of a light weapons infantryman. The DD 214 also shows that he had no duty outside of the U.S. and that no awards or decorations indicative of participation in combat were issued to him. He was discharged due to the expiration of his enlistment and transferred to the U.S. Army Reserve Control Group, with a requirement for annual training, to fulfill his military obligation. His terminal obligation of military service date was February 1973. The Board also notes that the Veteran's character of service was listed as Under Honorable Conditions. The claims folder reflects that the Veteran's initial claim for VA disability or pension benefits was made in October 2004. He had previously applied for, and received, VA education benefits in the 1970's. The October 2004 claim was for nonservice- connected disability pension benefits. The Veteran had suffered injuries to his back due to a fall from a ladder in February 2004. He was granted entitlement to nonservice-connected disability pension benefits in November 2004. The only disability listed was residuals of a low back injury with sciatica. Thereafter, the Veteran submitted his claim for service connection for PTSD in November 2006. He provided no information in regard to an alleged stressor at that time. The Veteran's service treatment records (STRs) do not reflect any treatment for a psychiatric illness. However, there was an entry from September 1968, where the Veteran was to be seen for back pain and rash on his right shoulder. The entry also noted that the Veteran's records were at "mental hygiene." The Veteran's discharge physical examination was done in December 1968. Although no psychiatric illness was diagnosed at that time, the Veteran did indicate a "yes" answer on his Report of Medical History as to whether he had nervous trouble of any sort. The examiner noted that the Veteran claimed frequent trouble sleeping, excessive worrying, and nervous trouble without further comment. Limited personnel records were also provided. These included the Veteran's DA Form 20, Enlisted Qualification Record, and a single sheet DA Form 20B, Insert Sheet to DA Form 20, Record of Court- Martial Conviction. The DA Form 20 shows that the Veteran underwent basic and advanced individualized training (AIT) at Fort Polk, Louisiana, between February 1967 and June 1967. He received evaluations of excellent for conduct and efficiency for both phases of training. In June 1967 he was listed as enroute to Fort Lewis, Washington. It appears that the Veteran did not report to any specific unit there as his next assignment is listed with Company C, 5th Battalion, [4]6th Infantry, 1st Armored Division at Fort Hood, Texas, as of September 1967. The DA Form 20 does show that the Veteran was promoted to Private First Class while at Fort Lewis in July 1967. The Veteran was reassigned to Company D, 5th Battalion, 46th Infantry, 2nd Armored Division at Fort Hood in November 1967. He again received marks of excellent in conduct and efficiency at both of his assignments at Fort Hood. He was transferred to Company C, 1st Battalion, 41st Infantry, 2nd Armored Division at Fort Hood in March 1968. His DA Form 20 reflects that he had completed training for Vietnam in February 1968. The Veteran received a mark of "unk" for conduct and efficiency for his latest assignment. He was then transferred to Company C, 2nd Battalion, 41st Infantry, 2nd Armored Division in November 1968 until his separation in February 1969. He again received marks of excellent for conduct and efficiency. The DA Form 20B indicates that the Veteran had been tried by a General Court-Martial and found guilty in October 1968. The charge was listed as willfully disobeying a lawful command on or about August 24, 1968. He was sentenced to hard labor, without confinement, for three months, forfeiture of $25 per month for three months, and reduction to Private (E-1) although this was suspended until February 16, 1969. The sentence further noted that the Veteran would serve as a Specialist 4 (E-4) unless the suspension was vacated. The sentence was listed as approved on February 3, 1969. Associated with the claims folder are VA treatment records for a period from August 2004 to February 2007. These reports show that a brief screening for depression and PTSD was negative in May 2005. The Veteran was initially seen in the mental health clinic in June 2006. He was given a diagnosis of adjustment disorder with mixed emotions and alcohol use at that time. In July 2006 he was given a diagnosis of PTSD (provisional). In September 2006 he provided a history of never having gone to war but being in the barracks with soldiers that had been to Vietnam. The examiner recorded that the Veteran said that his mental health symptoms were aroused once he became injured and unable to work. A psychology consult from November 2006 noted that the Veteran had said that, since he had gotten injured, everything seemed to be pouring out. The Veteran said he was deferred from going to Vietnam but went on a classified mission in another country. He said he was exposed to combat and people were killed. The examiner noted that the Veteran was given a number of psychological tests at that time. An entry from December 8, 2006, reported on the results of the psychological testing. The examiner noted that the Veteran's scores on several tests were suggestive of PTSD and that he appeared to meet several of the listed criteria in the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV). The psychologist said the scores supported a diagnosis of PTSD but noted that he did not have any available documentation that identified a traumatic stressor. He said the Veteran's chronic depression appeared to be due, in part, to his experiences in combat. The diagnoses at that time were anxiety disorder, not otherwise specified (NOS), rule out PTSD, dysthymic disorder, and personality disorder NOS (with schizoid and avoidant features). In an entry from January 9, 2007, the Veteran provided different information regarding his claimed stressor. He noted that he had received training in preparation for going to Vietnam and was sent to Fort Lewis in preparation for his assignment. The Veteran related that there was a situation at Fort Hood in 1968 where a number of African American soldiers did not want to go to Chicago to serve as riot control. The Veteran related that he was asked by the "CIA" to infiltrate the group and provide information. He said he agreed to this as he felt it was his duty. The Veteran infiltrated the group but was caught up in a general arrest of a number of them. He was court-martialed because he could not find his contact person. The Veteran felt that the authorities intervened as he was given an Honorable Discharge. He said that the events at Fort Hood were very stressful to him and that he had never revealed to anyone what happened. In a later visit he said that he had been able to avoid thinking of the events at Fort Hood until he had been injured. A mental health outpatient entry from February 13, 2007, noted that the Veteran said that his lady friend had found an article on the internet that contained an account of the events at Fort Hood and that listed the Veteran by name. The Veteran talked about how he had been through much because of the events at Fort Hood. The Veteran submitted a statement and additional evidence in February 2007. He identified his PTSD stressor as involving his work for the Army Criminal Investigation Division (CID) to get information about protests by African American soldiers at Fort Hood. He said that the event was a protest by African American soldiers who did not want to go to Chicago. He said that he was arrested as a ringleader and prosecuted because the CID would not admit to recruiting him. He said that he was treated like an outcast on the base after his court-martial. The Veteran included a copy of an Honorable Discharge certificate that showed his discharge from the U. S. Army Reserve as of July 1970. This was more than two years prior to obligated service date. The Veteran submitted a copy of an internet article that reported on the events at Fort Hood in August 1968. The article noted the circumstances of a gathering of African American soldiers at the base to discuss whether they would go to Chicago for riot control. The article noted that the group was given an order to disperse but not all of the soldiers did. The article reported that 43 soldiers were arrested. The article noted that the military police used force on some of the soldiers to place them in the stockade. Eight individuals were said to receive a general court-martial (GCM), and 35 were to receive a special court-martial. Those receiving the GCM were identified as ringleaders. The results of six of the GCM trials were listed. Two individuals were acquitted, two received Bad Conduct Discharges, and the Veteran, who was listed by name in the article, and another individual received sentences but no discharge. This was in October 1968, as noted on the DA Form 20B in the Veteran's records. The RO made a formal finding that the Veteran had not provided sufficient evidence to allow for corroboration of his stressor in April 2007. The Veteran's claim for service connection for PTSD was denied that same month. At the May 2010 hearing, the Veteran testified that he had not participated in combat. Rather, he identified his stressor as involving the events at Fort Hood in August 1968 and his later court-martial. The Veteran provided details about how his unit had been training for riot control. He noted how they got together on a parade field to discuss whether to perform the duty. He related the events of how a group of 43 were arrested and taken to the stockade. The Veteran testified as to how he had been recruited by the CID to provide information about what was going on. He tried to get in touch with his CID contact when he was in the stockade but was told he did not exist. He said he was left out and had representation from a civilian lawyer at his court-martial. The Veteran said he felt he was ostracized afterwards. The Veteran has stated that his claimed stressor is his involvement in the events at Fort Hood in August 1968. The involvement includes his recruitment as an informer, his arrest and court-martial, and his later feeling of being ostracized after his court-martial. The evidence of record generally corroborates the Veteran's claimed stressor - his involvement in the events of August 1968 that lead to his being charged with disobeying an order and given a general court-martial. The Veteran's limited personnel records clearly document the court-martial, to include the date of the offense and the date of judgment. The internet article confirms the general information regarding the circumstances of the Veteran's arrest and his being named as one of the parties found guilty. However, the evidence of record does not corroborate that the Veteran's actions were taken at the behest of the Army CID and that he was wrongly charged and convicted. Additional records must be sought in an attempt to corroborate the circumstances of the Veteran's actions. The Board notes that there is a VA Form 10-7131, Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action, in the claims folder. The form is dated in February 1981 and is an inquiry as to the Veteran's status from the VA Medical Center (VAMC) in Dallas, Texas. On remand, the RO should contact the VAMC to determine if there are any VA treatment records related to that period. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non- VA health care providers who have treated him for a psychiatric disorder (to include PTSD) since service. The RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. The RO should contact VAMC in Dallas, Texas to request any records of any psychiatric treatment received since February 1981 that may be available, if any. 2. The RO should also attempt to obtain the Veteran's military personnel records jacket (MPRJ) or his official military personnel file (OMPF). The effort to obtain records should include any and all records associated with his GCM. The DA Form 20 of record is not the Veteran's complete personnel file. The RO should also determine if there are any outstanding STRs pertaining to psychiatric evaluation or treatment. The September 1968 STR entry noted that the Veteran's records were in mental hygiene at the time - likely involving an evaluation in conjunction with his pending court-martial. 3. The RO should also contact the U.S. Army Criminal Investigative Division (CID) for copies of any investigations pertaining to the Veteran, especially from 1968 and ask that that agency confirm or deny whether the Veteran was a registered informant as he has claimed in 1968. 4. Upon completion of the above development, the RO should arrange for the Veteran to be scheduled for a VA psychiatric examination. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the overall examination. All indicated studies, tests and evaluations, if any, should be performed as deemed necessary by the examiner. The results of any testing must be included in the examination report. The examiner should be familiar with the Veteran's personnel records that provide information on his court- martial as well as the records relating to the incident in service in August 1968. The examiner should note the Veteran's performance evaluations were marked as excellent for the periods prior to and after his court- martial. The examiner should also note that the Veteran listed complaints of trouble sleeping, excessive worrying and nervous trouble on his medical history at his separation in February 1969. If a diagnosis of PTSD is made, the examiner should specify the stressor, or stressors, relied on in making the diagnosis of PTSD. Also, for any psychiatric diagnosis, to include PTSD, that is diagnosed on examination, the examiner should provide an opinion as to whether there is a 50 percent probability or greater that any such current disorder began during the Veteran's active military service or is otherwise related to an event of such service. The report of examination must include the complete rationale for all opinions expressed. 5. After undertaking any other development deemed appropriate the RO should re-adjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2009). He has the right to submit additional evidence and argument on the matter that 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 or by the Court 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). _________________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).