Citation Nr: 1122267 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 05-35 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that reopened and denied service connection for PTSD. In June 2004, the RO received additional service personnel records which were not previously considered. 38 C.F.R. § 3.156 (c) (When VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the prior decision without the need for new and material evidence.) In June 2008, the Board remanded the appeal to provide the Veteran with the hearing he had requested. In December 2008, the Veteran thereafter testified at hearing before the undersigned. In February 2009, the Board issued a decision that, among other things, denied the claim of service connection for PTSD on the merits. The Veteran appealed the February 2009 Board decision. In a November 2010 United States Court of Appeals for Veterans Claims (Court) Order, which adopted a November 2010 Joint Motion for Remand (JMR) signed by both parties to the appeal, the Court vacated and remanded the Board's February 2009 decision to the extent that it 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 Veteran claims that one of the stressors that caused his PTSD was being sexually assaulted while stationed in Stuttgart, Germany in 1962. He also claimed that he requested a transfer following the assault and that later in 1962 he was, in fact, transferred from Stuttgart to Munich, Germany. Service personnel records corroborate the 1962 transfer but do not contain any details regarding the reasons for the transfer. It is unclear whether all of the Veteran's service personnel records are on file. Notably, VA never directly requested the Veteran's service personnel records from NPRC. Rather, the Veteran provided VA with copies he had personally obtained. Therefore, the Board finds that a remand to is required to obtain a complete copy of the claimant's service personnel records because these records are crucial to claims, such as the current one, when a veteran is claiming service connection for PTSD due to a personal assault. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.304(f)(4) (2010); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). The Veteran also claims he has PTSD as a result of seeing dead bodies while participating in the recovery of a crashed aircraft. He explained that he served as a cryptographer, had top secret clearance, and was tasked with recovering the top secret radio equipment in the downed aircraft. In April 2011, he provided VA with additional details regarding this stressor. Specifically, he notified VA that the plane crash was U.S. Navy flight WV-2Q BUNO 131390 JQ-15 and the crash occurred on May 22, 1962, near Munich, Germany. The Board finds that the above information about the plane crash provides VA, for the first time, with sufficient details about the incident that allows a meaningful search to be undertaken to attempt to verify this stressor. Therefore, the Board finds that a remand is also required to undertake this development. 38 U.S.C.A. § 5103A(b); Ivey, supra. He also asserts that he has PTSD as a result of witnessing solders get injured during a live fire exercise and by being exposed to tear gas for an excessive period of time. Both events occurred during basic training, and the Board notes that available service personnel records show that the Veteran took his basic training at Fort Dix, New Jersey from August 1960 to October 1960 and during that time he was assigned to Company B of the 3rd Training Regiment ("BCo3TR"). Therefore, the Board finds that a remand is also required to attempt to verify whether either of the incidents the Veteran described occurred during his three months with Company B of the 3rd Training Regiment at Fort Dix, New Jersey from August 1960 to October 1960. 38 U.S.C.A. § 5103A(b); Ivey, supra. In this regard, the Board notes that when readjudicating the claim, the RO/AMC should be mindful of the fact that corroboration of every detail is not required to satisfy the 38 C.F.R. § 3.304(f) requirement that there be credible supporting evidence that the claimed stressors actually occurred. Suozzi v. Brown, 10 Vet. App. 307 (1997). While the appeal is remand status, the Veteran's contemporaneous treatment records from all available sources should also be obtained and associated with the record. See 38 U.S.C.A. § 5103A(b) (West 2002). If the above development verifies any of the Veteran's alleged stressors, the Board finds that he should be provided with a VA examination to obtain a medical opinion as to the etiology of his PTSD. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.304(f); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the appeal is REMANDED for the following actions: 1. The RO/AMC should obtain and associate with the record all of the Veteran's service personnel records. All actions to obtain the requested records should be documented fully in the claims file. Because these are Federal records, efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. If they cannot be located or no such records exist, a memorandum of unavailability must be associated with the claims file and the Veteran should be provided with a copy of that memorandum. 2. The RO/AMC should obtain and associate with the record all of the Veteran's contemporaneous treatment records from all available sources that have not as yet been associated with the claims file. All actions to obtain the requested records should be documented fully in the claims file. 3. The RO/AMC should attempt to verify from the appropriate source whether U.S. Navy flight WV-2Q BUNO 131390 JQ-15 crashed on May 22, 1962, near Munich, Germany and the names of the units involved with the recovery efforts. The RO/AMC should also attempt to verify whether any soldiers with Company B of the 3rd Training Regiment sustained injuries in a live fire exercise or by being exposed to tear gas for an excessive period of time at Fort Dix, New Jersey from August 1960 to October 1960. All actions to obtain the requested records should be documented fully in the claims file. Because these are Federal records, efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. If they cannot be located or no such records exist, a memorandum of unavailability must be associated with the claims file and the Veteran should be provided with a copy of that memorandum. 4. If the above development verifies any of the Veteran's alleged stressors, the Veteran should be afforded a VA PTSD examination. The claims file should be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims file. All indicated tests and studies deemed appropriate by the examiner must be accomplished and all clinical findings should be reported in detail. After a review of the claims file and an examination of the Veteran, the examiner should provide an opinion as to whether it as likely as not that the claimant has PTSD because of his verified stressor. Note: In providing an answer to the above question, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 5. Thereafter, the RO/AMC should readjudicate the claim taking into account the Court's holding in Suozzi, supra. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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 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. 2010). _________________________________________________ K. Parakkal 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) (2010).