Citation Nr: 1126085 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 09-35 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from October 1968 to July 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board notes that, in an unappealed February 1995 rating decision, the RO denied the Veteran's claim for service connection for PTSD. In December 2001 and August 2002 rating decisions, the RO denied the Veteran's request to reopen his previously denied claim. He was notified of these determinations and his appellate rights and did not appeal. However, additional service department records were received by the RO in October 2007 and, in the December 2007 rating decision, the RO properly reopened the Veteran's claim and considered it on a de novo basis. See 38 C.F.R. § 3.156(c) (2010) (to the effect that if VA receives relevant service department records not previously associated with the claims file, VA will reconsider the claim). 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 seeks service connection for PTSD. Prior to July 13, 2010, service connection for PTSD required: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2009), effective prior to July 13, 2010. However, effective July 13, 2010, 38 C.F.R. § 3.304 (f) was amended to include a new paragraph (f)(3) that reads as follows, in pertinent part: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 75 Fed. Reg. 39843-51 (July 13, 2010) and corrective notice at 75 Fed. Reg. 41092 (July 15, 2010). The provisions of this amendment apply to the Veteran's claim because he attributes his psychiatric disorder during his military service in Korea and the Republic of Vietnam to fear of hostile military or terrorist activity. A VA psychologist in May 2008, and a VA examiner in July 2009, attributed the Veteran's PTSD to military experiences. However, to date, the RO has been unable to verify the Veteran's alleged stressful events. In multiple written statements, the Veteran has reported several stressful events. First, he stated that, in the spring of 1969, he accidently ran over a child while driving a truck in Kunsan, Korea, while assigned to the Battery B, 6th Bn., 44th Artillery. Second, he reported an accident while driving a truck in Korea in mid or later 1969 in which a flagman directed him across a train track when a train was arriving and he was unable to back up. He pushed civilian vehicles back out of his way to miss the train. Third, he reported that, on March 28, 1971, he was involved in an attack of Firebase Mary Ann. Fourth, he described exposure to rocket and mortar fire in Chu Lai, including on February 16, 1972. Of record is the Veteran's Report of Separation from Active Duty (DD Form 214) for his active service from July 1970 to July 1974. This record indicates that his "Indochina or Korea Service Since August 5, 1964" was from April 6, 1971 to February 17, 1972. However, service treatment records reflect that, in March 1970, he was treated at Kunsan Airbase in Korea. It appears that the Veteran was in Korea prior to April 1971 and stressors of motor vehicle accidents in Korea and involvement in combat on Firebase Mary Ann (on March 28, 1971) must be re-examined. Available personnel records show that, from December 1971 to January 1972, the Veteran was assigned to the 196th Infantry Brigade. In July 2002, the Veteran indicated that, in March 1971, he was assigned to the 527th Infantry, Company B. A May 1971 Operational Report for the 23rd Infantry Division is also of record but does not discuss incidents in Chu Lai alleged to have occurred prior to or on February 16, 1972. In an October 2007 response to the RO's inquiry, the U.S. Army and Joint Services Records Research Center (JSRRC) said that it could not verify the Veteran's service in Korea during the time the claimed incidents occurred. The Board notes that there are no service department records regarding the Veteran's first two years of military service, other than an October 1968 enlistment examination report and the March 1970 service treatment records. In support of his contentions, in March 2007, the Veteran submitted a signed statement from a service acquaintance regarding their time in Korea and the two alleged stressful events: the April or May 1969 incident in which the Korean child was hit by a truck driven by the Veteran and the August or September 1969 incident regarding a train that hit the back of his truck injuring a lot of people. The Board believes that further efforts must be made to obtain any personnel records regarding the Veteran's first two years of active service, including any reports of a motor vehicle accident or incident in which he was involved during 1969 as well as an Operational Report for the 23rd Infantry Division for the period from May 1971 to February 1972. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center, the Department of the Army, and any other appropriate federal agency, and (a) request the Veteran's personnel records for his military service from October 1968 to July 1970, to specifically include his DA 20 and DA 201 showing all foreign travel, including to Kunsan Airbase, Korea, when he was assigned to the Battery B, 6th Bn, 44th Artillery; and (b) any incident or accident report (s) regarding a mid-1969 motor vehicle accident in or near Kusan (Kun Song?), Korea, in which a military truck driven by the Veteran hit a Korean child and an August, September, or October 1969 incident in Insan (or Kusan), Korea, in which a military truck driven by the Veteran backed over train tracks and hit civilian vehicles in an attempt to avoid a collision with a train. If any records are unavailable, a memorandum detailing all efforts to obtain them should be placed in the claims file. 2. Contact appropriate service department and request all Operational Reports regarding the 196th Infantry Brigade, the 527th Infantry, Co., B, and/or the 23rd Infantry Division, for the period from May 16, 1971 to February 17, 1972. If any records are unavailable, a memorandum detailing all efforts to obtain them should be placed in the claims file. 3. After completion of the above, the RO/AMC should review the expanded record and determine if the benefit sought can be granted. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ THOMAS J. DANNAHER 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).