Citation Nr: 1127490 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 06-07 801 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of head trauma. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a psychiatric disability other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1974 to August 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2005 decision of the Waco, Texas, VARO. In October 2007, the Veteran appeared at a hearing before a Decision Review Officer (DRO) at the RO; a transcript of this hearing is included in the claims file. These matters were previously before the Board in June 2009, at which time service connection for a psychiatric disability other than PTSD was reopened and all claims were remanded for additional development. The Board notes that in an interim precedent decision (Clemons v. Shinseki, 23 Vet. App. 1 (2009)), the U.S. Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record, i.e., that matter(s) of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of a claim for service connection for a psychiatric disability (and that such matter(s) is/are before the Board). In the instant case, the matters of service connection for PTSD and for a psychiatric disability other than PTSD are separately handled because there had been a prior final decision in the matter of entitlement to service connection for a psychiatric disability other than 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 on his part is required. REMAND The Veteran's DD Form 214 indicates that he lost 114 days (from March 22, 1974 through July 15, 1974) of creditable service under 10 U.S.C.A. SECTION 972. Army Regulation 635-5, Separation Documents 8 (Sept. 15, 2000), states that time lost under 10 U.S.C.A. SECTION 972 is not creditable service for pay, retirement or, notably, veterans' benefits. Because many of the events alleged to have resulted in the Veteran's disabilities may have occurred during the period of noncreditable service, or may have resulted in the noncreditable service, the claims on appeal were remanded for a line of duty determination regarding the alleged incidents. In its June 2009 remand, the Board instructed that Line of Duty Determinations be completed for three incidents: 1) The March 21, 1974 fight in which the Veteran was involved, which appears to have resulted in his subsequent confinement; it was after this incident that he sought treatment on several occasions for headaches, back pain, dizziness, dim vision, and tinnitus. 2) The July 9, 1974 incident in which the Veteran allegedly lost consciousness and fell down a flight of stairs; this incident appears to have occurred while he was in confinement, and he informed medical personnel that he hit his head and back on the steps. 3) The alleged incident in June or July 1974, during the Veteran's confinement at Fort Riley, Kansas, in which he contends that he was handcuffed and attacked by a military policeman who repeatedly kicked him in the head and kneed him in the groin. A review of the claims file revealed a May 2011 PIES request for information that addressed a Line of Duty determination for "assault by guard, confined 6/74 - 8/74, Ft. Riley". The response indicated, "The document or information requested is not a matter of record." The document did not address any Line of Duty determinations for any other incidents. The Board finds that the remand instructions were not completed in full regarding the requested Line of Duty determinations. Because Line of Duty is a threshold determination in establishing entitlement to service connection, another remand for completion of the remand instructions is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for all necessary development, and then make line of duty determinations regarding the three incidents in service alleged to have resulted in the claimed disabilities. If it is determined that any of these three incidents did not occur in the line of duty, the RO should notify the Veteran of its decision, advise him of his appellate rights, and provide him opportunity to appeal the line of duty determinations. 2. If the RO determines that any of the three incidents did occur in the line of duty, the RO should undertake any further development suggested by the record (e.g. personal assault stressor development, VA examination based on any verified stressor, determinations regarding pre-existence of residuals of head trauma, etc.). 3. After the development sought above is complete, the RO should readjudicate the claims. If the incident which is claimed to be the etiological factor responsible for a disability did not occur in line of duty, the denial of the claim must be on that basis. If any claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ George R. Senyk 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).