Citation Nr: 1122040 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 04-37 737A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Theodore C. Jarvi, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The Veteran had active service from February 1968 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In February 2006, the Veteran was afforded a video-conference hearing before the undersigned Veterans Law Judge rendering the determination in this claim. See 38 U.S.C.A. § 7102(b) (West 2002). The Board remanded this case in April 2007 for procedural considerations and the action requested in that remand was accomplished to the extent possible. Following the Board's denial of the Veteran's claim to reopen in June 2008, the Veteran filed a timely appeal of that decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, pursuant to a January 2009 Joint Motion for Remand, a February 2009 Order vacated the Board's decision and remanded the case for compliance with the instructions in the Joint Motion. In March 2010, the Board remanded the case to the RO, concluding that as a result of the determination of the parties to the Joint Motion, it was necessary for the Board to remand the case so that the RO could take the steps necessary to obtain additional ship logs for the USS Rainier for the period of November 1, 1968, to April 30, 1969, in a further effort to verify the Veteran's claimed stressors while aboard that vessel. Pursuant to the request of the attorney for the Veteran, the appeal is once again REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND As was noted above, in March 2010, the Board remanded this matter so that the RO could take the steps necessary to obtain additional ship logs for the USS Rainier for the period of November 1, 1968, to April 30, 1969, in a further effort to verify the Veteran's claimed stressors while aboard that vessel. In this regard, the ship logs for the USS Rainier for this period were in fact obtained by the RO, and following the RO's review of this evidence, the RO concluded in the August 2010 supplemental statement of the case that such records had not verified any of the Veteran's stressors, and that the Veteran's application to reopen the claim would therefore remain denied. In response to the actions of the RO, in a January 2011 letter to the Board, after noting that the additional logs did not contain a record of the Veteran arriving on board the USS Rainier, a record of either of the Veteran's Captain's Masts, a record of C.B. in the sinking of the "liberty board" at Grande Island in the Philippines, a record of the Captain's ceremony for R.J. [Navy Cross], or a record of W.V. leaving for the dispensary for burns at the same time the Veteran was burned, the Veteran's attorney stated that the Veteran now realized that there were other logs maintained on board, which would assist in the documentation of his stressor, and that these included "engineering, medical and judicial logs and ships logs (not deck logs)." The attorney further stated that "[w]e do not waive Regional Office Consideration of these materials." In addition, in a subsequent letter dated in March 2011, the Veteran's attorney "renewed our request from January 5, 2011 that the BVA remand the claim so the VARO can obtain more evidence," noting that the Veteran contended that the available records were inadequate to substantiate his claims. Once again, the Veteran's attorney noted that the deck logs were inadequate by failing to document W.V.'s treatment for burns, and the Veteran's suggestion that VA obtain other logs maintained on board that would assist the documentation of his stressor, including "engineering, medical and judicial logs and ships logs (not deck logs)." Consequently, because the Veteran's attorney has identified additional records that would help to substantiate the Veteran's claim that have not yet been specifically requested, and has requested that the Board remand the claim for this purpose, the Board finds that it has no alternative but to remand the claim so that an effort can be made to obtain these records. While the Board appreciates the fact that the Veteran's attorney has further argued that the current evidence is nonetheless sufficient to reopen the claim, and that the Board's remand should include a directive that the Veteran be afforded an examination to determine whether he has a verified stressor that supports a current diagnosis of PTSD, the Board finds that a determination as to further development should be held in abeyance pending the receipt and review of any additional records. Accordingly, the case is REMANDED for the following action: 1. Steps should be taken to contact the Department of the Navy or any other appropriate agency for the purpose of obtaining copies of the "engineering, medical and judicial logs and ships logs (not deck logs)" for the USS Rainier for the period of May 1, 1968, to April 30, 1969. These documents should then be associated with the claims folder in their entirety. 2. Thereafter, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ P.M. DILORENZO 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).