Citation Nr: 1116005 Decision Date: 04/22/11 Archive Date: 05/04/11 DOCKET NO. 94-17 740 ) DATE ) ) RECONSIDERATION On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, C.E. and F.M. ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1959 to November 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 1993 of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2009, the Board remanded the claim, but further development remains necessary. Throughout the appeal, the Veteran has been represented by an attorney, but in November 2008, the attorney had to withdraw for medical reasons. The Veteran then appointed Disabled American Veterans as his representative. And in June 2009, Disabled American Veterans submitted additional argument on the Veteran's behalf. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND In May 1995, the Veteran testified that he first had nervous problems in 1962 when he was in Vietnam for three months as an advisor. He stated that before he went to Vietnam he was in an artillery battery in Germany and that he had volunteered with four or five others to serve as advisors in Vietnam. He indicated that his nervous condition was triggered when his patrol was ambushed and most of his patrol was killed. He stated he was treated for this condition at a military hospital in the Philippines, but he could not remember the name of the hospital and he thought that it might have been at an air base. In a decision in January 1997, the Board denied service connection for a psychiatric disorder to include posttraumatic stress disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for remand, in March 1999, the Court vacated the Board's decision and remanded the case to the Board. In a decision in July 1999, the Board again denied the claim. The Veteran then appealed the Board's decision to the Court, but he subsequently withdrew his appeal in favor of a motion for reconsideration by the Board. In March 2000, an Order for Reconsideration by an expanded panel of the Board was granted by the Vice Chairman of the Board. The newly constituted Reconsideration Panel remanded the case to the RO in April 2000. In a decision in June 2003, the Reconsideration Panel denied the claim of service connection for a psychiatric disorder to include posttraumatic stress disorder. The Veteran then appealed the decision to the Court. In an order entered in March 2006, the Court vacated the Board's decision and again remanded the case to the Board in order that the Reconsideration Panel could conduct further development. In December 2006, in a remand, the Board directed the RO to request records from the U. S. Department of State. In February 2007, a representative of the U.S. Department of State stated that after 25 years records are transferred to the National Archives and Records Administration and that the request should be referred there. In March 2007, the RO forwarded the request to National Archives and Records Administration. In July 2007, the National Archives and Records Administration (Modern Military Records) indicated that if the Veteran served in Vietnam his name would presumably appear on special orders from the Military Assistance Advisory Group Vietnam, but the date that the Veteran arrived in Vietnam was needed to conduct a search. The letter also advised that a request be submitted for morning reports for the Veteran's battery in Germany as the reports will indicate the departure and return from a temporary duty assignment. In September 2007, the Veteran provided information that he was in Vietnam in approximately May 1962. In February 2008, the RO provided the National Archives and Records Administration with the date of May 1962 for the Veteran's arrival in Vietnam. In March 2008, the National Archives and Records Administration (Customer Service Center) stated that the unit to which the Veteran was assigned in Vietnam was needed. In April 2008, the RO ask the Veteran to provide the unit to which he was assigned in Vietnam. In May 2008, the Veteran stated that he did not remember the name of his unit due to the time that had elapsed and due to the effects of a brain aneurysm. In August 2009, the Board remanded the issue for the National Archives and Records Administration to search the special orders of the Military Assistance Advisory Group to verify whether the Veteran was in Vietnam in April 1962, in May 1962 or in June 1962. In January 2010, the National Archives and Records Administration indicated that they didn't have the capacity to perform the search and advised that it would be more efficient for the National Personnel Records Center too search the morning reports and unit rosters. In February 2010, the National Personnel Records Center reported that they were unable to find personnel records indicating service in Vietnam and that the search of morning reports did not show that the Veteran was in Vietnam in 1962. In April 2010, the National Archives and Records Administration requested that the search for special orders be narrowed to a one month time frame. In August 2010, VA requested that the search be narrowed to May 1962. In September 2010, the National Archives and Records Administration advised that while the records may be incomplete, the search of special orders of the Military Assistance Advisory Group for the month of May 1962 did not show that the Veteran was assigned to the advisory group. While there has been extensive development in this case, including requests for morning reports and a unit history, and searches by the National Personnel Records Center, U.S. Department of State, and National Archives and Records Administration, a search for relevant records by the U.S. Army and Joint Services Research Center has not been made. As VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, unless the records sought do not exist or that further efforts to obtain those records would be futile, further development under the duty to assist is needed. 38 C.F.R. § 3.159. Lastly, on VA examination for posttraumatic stress disorder in December 1995, the examiner concluded that the Veteran did not have a posttraumatic stress disorder. The Board notes that effective November 7, 1996, VA revised the criteria for diagnosing and evaluating psychiatric disabilities. 61 Fed. Reg. 52695 (1996). On and after that date, all diagnoses of mental disorders for VA purposes must conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 61 Fed Reg. 52700 (1996) (codified at 38 C.F.R. § 4.125). Therefore a new VA psychiatric examination is warranted to determine whether the Veteran currently has a psychiatric disorder in accordance with the DSM-IV criteria. The examiner also noted the Veteran was receiving benefits from the Social Security Administration (SSA) and these records need to be associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Ask the U.S. Army and Joint Services Research Center for the unit history and lessons learned of the Btry C, 1st Howitzer Bn, 75th Arty, APO 177 (Ansbach, Germany) in May 1962 and for any unit morning reports or sick reports of the Btry C, 1st Howitzer Bn, 75th Arty, APO 177 for May 1962, to determine whether the Veteran was on temporary duty and the unit to which he was assigned. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Request records from the Social Security Administration. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Afford the Veteran a VA psychiatric examination to determine: a). Whether the Veteran currently has a psychiatric disorder other than posttraumatic stress disorder; and, if so, b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that any current psychiatric disorder other than posttraumatic stress disorder is related to service. If however after a review of the record, an opinion is not possible without resort to speculation, the VA examiner is asked to clarify whether the requested opinion cannot be rendered because there are several potential factors, including residuals of a brain aneurysm after service, when one factor the Veteran's military service, is not more likely than any other to cause the Veteran's current psychiatric disorder, and that the requested opinion is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file must be provided to the examiner for review. 4. Only if there is evidence confirming that the Veteran served in Vietnam, afford the Veteran a VA examination, including psychological testing for posttraumatic stress disorder, to determine whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that the Veteran has current posttraumatic stress disorder (or has had posttraumatic stress disorder at any time since 1992) that is related to an in-service stressor, including fear of hostile military action. If however after a review of the record, an opinion is not possible without resort to speculation, the VA examiner is asked to clarify whether the requested opinion cannot be rendered because such an opinion is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file should be provided to the examiner for review. 5. After the development has been completed, adjudicate the claim. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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. 2010). _______________________ _______________________ L. Howell Mark D. Hindin Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _______________________ George E. Guido Jr. 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) (2010).