Citation Nr: 1136801 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 06-26 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and anxiety. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from June 1968 to June 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, the Board reopened the claim for service connection for a psychiatric disorder, to include PTSD, depression and anxiety and remanded the claim for further development. 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 Board finds that the actions taken with regard to the Veteran's claim for service connection for a psychiatric disorder, to include PTSD, depression and anxiety have not satisfied the October 2010 remand request. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance. The record shows that the Veteran has been diagnosed with various psychiatric disorders to include, depression, anxiety disorder, PTSD and bipolar disorder. The Veteran reports that his psychiatric condition is due to witnessing two traumatic events while he was stationed in Germany. He states that between February and April 1969, he witnessed the death of a close personal friend with the last name Nelson. In a statement dated in August 2005, he reported that the individual's first name was Elbert; however, later he reported that he did not recall the first name. He reports that a 5 ton truck driven by Nelson went off the road and over a cliff. Buddy statements indicate that the accident occurred while Nelson was travelling from Grafenwohr to Erlangen, Germany. Additionally, the Veteran and a buddy asserted that there was an incident in August 1969 during which several members of their unit were burned by diesel fuel and/or in a Jeep accident. The Veteran reported that he went to see one of the men in a hospital but he did not remember any of the men. In its October 2010 remand, the Board determined that the RO had not conducted adequate stressor verification of the Veteran's reported stressors and determined that further development was warranted. With regard to the death of Elbert Nelson, the RO had conducted a prior search of morning reports but the search produced negative results. The Board noted, however, that at the time of the initial search, the RO did not have the first name of PFC Nelson as his first name was provided by the Veteran after the search had been conducted. [Moreover, the Board now notes that the only morning report produced by NPRC when a search was conducted in April 2005 pertained to the Veteran rather than to the reported casualty (Nelson). This suggests the possibility that a search was conducted for the wrong name.] Also, additional information provided after the RO's initial search related to the fact that the accident occurred while travelling from Grafenwohr to Erlangen, Germany. Moreover, the RO had not conducted a search of the reported accident where soldiers suffered burns. In light of the evidence, in the Board's October 2010 remand, the RO was requested to attempt to verify both incidents through official sources. The RO provided the Veteran's reported stressors to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification in November 2010. JSRRC was unable to confirm either incident. Unfortunately, the response indicates that a search was conducted for Nelson Elbert, rather than Elbert Nelson as had been requested. In addition, the response noted that it (JSRRC) did not maintain morning reports and that the National Personnel Records Center (NPRC) should be contacted for a search of those records for names of any casualties or wounded persons. The RO, however, did not conduct any further searches. Thus, the RO should again contact the JSRRC and request a search for Elbert Nelson (Not Nelson Elbert) and thereafter, should contact the NPRC for a search of morning reports for both reported incidents. Furthermore, in a September 2011 Appellate Brief Presentation, the Veteran's representative argued that due to the nature of the accident and injuries reported by Veteran, additional searches should be conducted such as obtaining line of duty determinations. On remand, the RO should also conduct a search of such records. Accordingly, the case is REMANDED for the following action: 1. The RO should again contact the JSRRC and request a search for records pertaining to the death of Elbert Nelson (Not Nelson Elbert) or any serviceman with the Veteran's unit named Nelson during February to April 1969. 2. Request that the NPRC conduct a search of the morning reports of the Veteran's unit for the reported incident involving the death of Elbert Nelson (or any serviceman with the Veteran's unit named Nelson) during February to April 1969 and for the reported accident where soldiers suffered burns from August to September 1969. If such evidence is not available, a negative reply is required. 3. Contact appropriate records depositories to request copies of the complete Line of Duty determination records and accompanying investigation reports, including any military police reports, with regard to the reported death of Elbert Nelson during February to April 1969 and for the reported accident where soldiers suffered burns during August to September 1969. If such evidence is not available, a negative reply is required. 4. If, and only if, an alleged stressor is sufficiently verified or corroborated, the RO should arrange for a VA examination to determine whether he currently suffers from PTSD or any other psychiatric disorder, including anxiety or depression, as a result of the verified or corroborated stressor(s). The Veteran's claim file must be made available to and be reviewed by the examiner prior to the completion of the examination. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether the Veteran suffers from PTSD or any other psychiatric disorder as a result of the verified in-service stressor(s). All tests deemed necessary should be performed. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 5. After the development requested above has been completed, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ MICHAEL MARTIN Acting 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).