Citation Nr: 1134841 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-36 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from June 1985 to April 1988. This matter comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the above Department of Veterans Affairs (VA) Regional Office. In January 2009, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing from the RO. A transcript is of record. The Board previously remanded this claim for additional development in January 2010. Although the development requested in the Board remand was substantially accomplished, the claim must be remanded again for the reasons stated below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND The Board previously remanded this case, in part, so that a VA examination for compensation purposes could be provided to address any current psychiatric disorders and their cause/etiology as related to service. It was summarized that the Veteran alleges that he suffers from PTSD as a result of an incident in service. At his January 2009 hearing before the undersigned Judge, he testified that while he was on board the USS Mobile on November 21, 1985, a fellow sailor, a fireman, received a serious head injury, and that sailor died on November [redacted], 1985. The Veteran added that he knew this man, that they were friends, and that they had eaten lunch together. The Veteran added that he was present when this fellow sailor was injured when a pipe hit him on the head, adding that he in essence witnessed the man bleeding to death. The Veteran contended that he had served aboard the USS Mobile continuously between November 5, 1985, and April 13, 1988. Through official channels, the RO has confirmed that a sailor, a fireman aboard the USS Mobile, did suffer an injury on November 21, 1985, and died on November [redacted], 1985. Necessarily, any acquaintance between that individual and the Veteran cannot be verified through official channels, and the Veteran has produced no evidence to corroborate his asserted friendship with that sailor prior to his death. The Veteran has noted that his service treatment records (STRs) as contained within the claims file might not be complete. His complete service personnel records also could not be obtained. However, official military sources have ruled out the availability of additional service personnel records or STRs. Those service personnel records which have been obtained support his stationing aboard the USS Mobile from December 23, 1985, until his service separation in April 1988. To support his contention that he was aboard the USS Mobile at the time of the other sailor's injury and death, however, the Veteran submitted copies of his Earnings and Leave statements dated on October 31, 1985, November 30, 1985, and December 31, 1985, which note the Unit Identification Number referring to the USS Mobile (LKA-115). More recently, after the AMC mailed the Veteran the Supplemental Statement of the Case (SSOC) on June 17, 2011, he returned the "SSOC Notice Response", which was received by the AMC on July 18, 2011, and forwarded to the Board , where it was received on July 21, 2011. Attached to said response were several items: (1) a copy of his DD Form 214; (2) his personal comments in rebuttal of statements in the SSOC, with the contention that the reported duration of his service at sea (2 years, 5 months, and 7 days) took place exclusively aboard the USS Mobile until the day of his release from active duty, and therefore dated back to October 1985; and (3) a copy of a letter written by a fellow service member, J.P., who noted that he was a seaman in the Deck Department 1st Division when the Veteran first reported on duty to the USS Mobile (LKA 115) in October 1985. (The Board notes that the RO did not review this document; nor did the Veteran waive RO jurisdiction for initial reviewof the evidence.) Although official documentation from personnel records does not show his assignment to the USS Mobile until December 23, 1985, the Veteran has submitted probative evidence that he was on the ship as early as October 31, 1985. Thus, the Veteran was shown to be stationed aboard the USS Mobile in November 1985, and thus he was on that vessel when that fellow sailor was injured and subsequently died in November 1985. The remaining issue is therefore the correct diagnosis. The Veteran has not alleged that he received treatment for a psychiatric disability in service, nor has he alleged particular functional difficulties with onset in service which would have been signs or symptoms of psychiatric impairment as related to his claimed PTSD. He calls attention to a report of medical history dated in April 1988, on which boxes are checked endorsing "frequent trouble sleeping" and "nervous trouble of any sort." His service separation examination in May 1988 provided a finding that he was then psychiatrically normal. He also submitted a copy of a letter reportedly written home to his father while he was in service. While the letter makes mention of the Veteran's having lost his mother, it does not address any PTSD-related stressor experiences related to service. VA treatment records dated since June 1993 show diagnoses of depression and suicidal ideation. The claims file also contains some past VA treatment records carrying a diagnosis of PTSD. The most recent diagnosis is in July 2009; but the diagnosis is based on the Veteran's reports of seeing a friend die and having to clean up the blood, in addition to witnessing and experiencing sniper fire in the Philippines. While the incident with the fellow sailor's death has been corroborated, there is no official documentation of the Veteran experiencing sniper fire in the Philippines. In April 2010, a VA examination report was provided. The claims file was reviewed and the Veteran's extensive psychiatric and substance abuse history was noted. The examiner, a medical doctor, found that the Veteran met the criteria for a personality disorder, which by its nature pre-existed service, which was not aggravated by any event in service. With respect to a diagnosis of PTSD, the examiner found that although there might be some stress-related paranoid ideation related to polysubstance dependence, as well as borderline personality traits, there was no evidence of an independent psychotic disorder at that time. The examiner further noted that, regarding the stressor of briefly knowing and possibly witnessing the death of a fellow sailor, the claimed stressor did not reach the severity and intensity of the type of stressors that would be expected to have a high probability of resulting in PTSD. The April 2010 examiner's opinion regarding the severity of the claimed stressor experienced appears to be based on what the average person would consider traumatic. However, the 4th Edition of the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (1994) (DSM-IV), significantly revised the previous criteria for a diagnosis of PTSD. In particular, the person's response to the stressor is no longer based solely on usual experience and response. Rather, it is geared to the specific individual's actual experience and response. Thus, one of the determining factors in this case should be whether the Veteran's experience of witnessing the death of a fellow sailor and having to clean up after the event was sufficiently traumatic to meet the criterion for a PTSD stressor, not the probability of whether it would be expected to be traumatic. Therefore, on remand, the same examiner (if possible) should be asked to comment on the Veteran's specific experience in witnessing the death of the sailor aboard the ship, not what the average person's experience would be. The Veteran was previously represented by a Veterans Service Organization, but in July 2011 he filed a VA Form 21-22a "Appointment Of Individual As Claimant's Representative" signed by himself and an accredited private attorney. The Veteran requested an additional period of time for his attorney to review the file. There is no record of argument submitted on the Veteran's behalf by his representative. While the Veteran was granted an additional 30 days to submit more information or evidence on his behalf, because the case is being remanded for the above-stated reasons, the Veteran's attorney should be given the opportunity to review the file, if so desired, and submit written argument and/or evidence on the Veteran's behalf. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter asking him to elaborate on any additional PTSD stressors he is claiming, particularly experiencing sniper fire in the Philippines, as he stated on a July 2009 VA treatment record. If the Veteran provides the proper date range and geographic location parameters, conduct the necessary development in attempts to corroborate the claimed stressor(s). 2. After completion of #1, arrange for a VA psychiatric examination with the same examiner who provided the April 2010 VA examination report (if possible), with a statement of the presumed in-service stressors consisting of the Veteran having briefly known and possibly witnessed the death of a fellow sailor on his ship, as discussed in the body of this Remand, above. The claims file must be made available for review in conjunction with any examination, and any examination report should reflect such review. All necessary tests should be performed. The examiner should be asked do the following: a. Comment on the Veteran's specific reaction to witnessing the death of the fellow sailor in accordance with DSM-IV, rather than what the average person's experience would be. b. Provide a diagnosis for all acquired psychiatric disorders present (if at all revised from the previous report). c. If PTSD is found in accordance with the DSM-IV, so state, and render an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the PTSD is due to an in-service stressor incident; or whether such a relationship to service is unlikely (i.e., less than a 50-50 degree of probability). d. If any other psychiatric disorders are present, then for each of those additional psychiatric disorders (one or more), render an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the disorder originated in or is causally related to service; or whether such origin or causation is unlikely (i.e., less than a 50-50 degree of probability). e. In providing the above opinions, it is essential that the examiner review past and current lay statements by the Veteran, and consider both documented evidence of any history of disorder, as well as absence of any such history over any relevant time periods. The examiner should also consider other factors which may affect a determination of causation or etiology as related to service. f. Note: The term "at least as likely as not" as used above does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. g. Any opinion provided should include discussion of specific evidence of record. If any questions cannot be answered without resorting to pure speculation, the examiner must provide a complete explanation why those questions cannot be answered. 3. Thereafter, readjudicate the remanded claim de novo. If the benefit sought is not granted to the Veteran's satisfaction, provide the Veteran and his attorney with an SSOC and appropriate opportunity to respond thereto. 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). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).