Citation Nr: 1234915 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 03-24 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to November 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In March 2005, in pertinent part, the Board denied the Veteran's claim for service connection for PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2006 Decision, the Court granted Joint Motion filed by the parties and remanded that portion of the Board's March 2005 decision which denied service connection for PTSD back to the Board for additional evidentiary development. It was specifically noted that VA failed in its duty to assist the Veteran with his claim by not requesting a search of service department records in an attempt to verify stressors reported by the Veteran. Accordingly, in May 2007, the Board remanded the Veteran's claim for development complying with the Joint Motion, and it thereafter was returned to the Board for further review. The Board, in March 2009 and January 2011, again remanded the claim for the development requested. The case has now been returned to the Board for further review, consistent with the Joint Motion. Here, the Board notes that the Veteran's primary psychiatric diagnosis has been PTSD. The Court has held that claims for service connection for one psychiatric disorder encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim reported symptoms, and the other information of record). Therefore, the Board has characterized the issue as set forth on the title page of this decision. 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 on his part. REMAND The Veteran contends that he has PTSD that is a direct result of his military service. He has specifically noted that his claim is not based on combat exposure. He testified under oath in September 2003 that he did not in fact have any combat in Vietnam. He bases his claim on a variety of incidents which he contends occurred on Midway Island, to include: racial tensions on Treasure Island; seeing a group of black men stabbing two boys and then chasing him; being blasted with a fire hose off the pier and into San Francisco Bay; receiving a Captain's mast for fighting; witnessing his roommates beating their Chief and their subsequent conviction/incarceration for attempted murder; torturing Viet Cong detainees on Turtle Island; his own charge and acquittal of attempted murder; killing goony birds; and someone trying to kill him in a Shore Patrol 10-ton truck. More recently, he reported an inservice personal assault as evidenced by treatment for right hand abrasions and for a right hand fracture during service. Attempts to verify these stressors with the National Personnel Records Center (NPRC), Navy Criminal Investigative Service (NCIS), National Archives and Records Administration (NARA), United States Armed Services Center for Research of Unit Records (USASCRUR), and Judge Advocate General (JAG), resulted in negative responses. The USASCRUR noted that that a Japanese submarine, Isoshio, did make port at Midway in August 1974, but this was before the Veteran was stationed on the island. Moreover, while the Veteran's service personnel records (SPRs) contain evidence of non-judicial punishment for assault and battery, there is no indication that he was charged and/or acquitted for attempted murder of a Navy Seal, or arrested for killing goony birds. Moreover, these incidents, along with the non-judicial punishment for assault and battery are results of the Veteran's own willful misconduct and not credible supporting evidence for a PTSD claim. Thus, the Veteran's stressors remain unverified. In additional background information, it is noted that the Veteran served on active duty from April 1974 to November 1975. Service personnel records (SPRs) reveal the Veteran reported to the United States Naval Station at Midway Island in March 1975. He was stationed there until November 1975. He did not have any service in the Republic of Vietnam, and as noted above, he has not contended otherwise. In June 1975, the Veteran received non-judicial punishment for assault and battery. It was recommended that he be discharged by reason of unfitness. His commanding officer reported that he demonstrated a marked inability to avoid frequent involvement with military authorities. In September 1975, the Veteran was cited for failure to go to appointed place of duty and three specifications, use and possession of marijuana, and being present where marijuana was being used. The service treatment records (STRs) are devoid of any complaints of or treatment for PTSD. In March 1975, the Veteran complained of nerves and insomnia. The examiner determined that the Veteran was "excited about going home." In April 1975, he was seen for abrasions of the 3rd and 4th digits of the right hand after getting his fingers caught on the rim of a basketball goal. In September 1975, he was seen for a right hand injury which resulted in the diagnosis of a fracture (for which service connection is in effect). There was no notation that this injury resulted from a personal assault. The October 1975 separation examination was negative for a psychiatric disorder, to include PTSD. The Veteran was first diagnosed with severe symptoms of PTSD in December 1999. VA outpatient treatment records dated in 2001 and 2010 show continued treatment for PTSD. Lay statements dated in 2003 from the Veteran's father and brother reflect that he wrote a letter home during service saying that he was a prisoner of war (POW). The Veteran's father stated that this letter caused the Veteran's mother to contact Red Cross for information as to where the Veteran was being detained and her subsequent mental breakdown. They both described a change in the Veteran's behavior after his discharge. Attempts to locate treatment records at Midway Hospital and Tripler Medical Center were negative. In February 2004, NCIS indicated that there were no records of investigation pertaining to the Veteran. As per Board remand requests in 2009 and 2011, additional attempts were made to obtain verification of the Veteran's alleged inservice stressors. Also, a VA medical professional reviewed the record and supplied an August 2009 report regarding whether the alleged inservice personal assault likely occurred. Following review of the record, the examiner opined that it was less likely that the Veteran exhibited behavioral changes from the time of the claimed assault. He noted that the Veteran showed behavioral issues resulting in numerous disciplinary infractions prior to the date of the reported assault. Added to the record in 2011 were various articles obtained from the internet, to include excerpts pertaining to travel in Vietnam and Naval Aviation Flight Records. Added to the record in early 2012 were two statements by fellow servicemen who served with the Veteran on Midway Island. They attested as to the racial tension there. One attestee recalled that the Veteran "got jumped a couple of time for being white" and for saying things that "they didn't like." He recalled that the Veteran's hand was broken and he nearly lost an eye. He recalled that there were fight and stabbings on a weekly basis on the island. In an August 2012 report, a private physician, who specialized in psychiatry and neurology with a subspecialty certification in child and adolescent psychiatry, opined that the Veteran had PTSD of service origin. She noted that she had reviewed the entire claims file, and her report included a very thorough summarization of the pertinent records contained therein. She found that the Veteran's account of his inservice assault was credible and confirmed that he suffered from a severe, chronic, and totally disabling psychiatric condition characterized by symptoms consistent with PTSD secondary to his experiences on Midway Island (to include stress as indicated by being treated for hives, the right hand fracture, and his numerous disciplinary issues), but particularly the assault that occurred there. STRs are devoid of any complaints of or treatment for PTSD. In March 1975, the Veteran complained of nerves and insomnia. The examiner determined that the Veteran was "excited about going home." In April 1975, he was seen for abrasions of the 3rd and 4th digits of the right hand after getting his fingers caught on the rim of a basketball goal. In September 1975, he was seen for a right hand injury which resulted in the diagnosis of a fracture (for which service connection is in effect). There was no notation that this injury resulted from a personal assault. The October 1975 separation examination was negative for a psychiatric disorder, to include PTSD. The Veteran was first diagnosed with severe symptoms of PTSD in December 1999. VA outpatient treatment records dated in 2001 and 2010 show continued treatment for PTSD. In an April 2001 stressor statement, the Veteran reported the following stressful incidents: racial tensions on Treasure Island; seeing a group of black men stabbing two boys and then chasing him; being blasted with a fire hose off the pier and into San Francisco Bay; receiving a Captain's mast for fighting; witnessing his roommates beating their Chief and their subsequent conviction/incarceration for attempted murder; torturing Viet Cong detainees on Turtle Island; his own charge and acquittal of attempted murder; and someone trying to kill him in a Shore Patrol 10-ton truck. In a July 2001 statement, the Veteran indicated that he had provided all the information about Vietnam. He further stated that he could not give any more specific information about the claimed events and to check for investigative reports with NCIS. However, in statements submitted in recent years (e.g. in May 2008 and September 2009), the Veteran has reported that he was personally assaulted during service and that incident resulted in the fractured right hand for which he is service connected). The Veteran provided testimony before the local RO via videoconference in September 2003. He testified that he was not basing his claim on combat exposure. He stated that he did not have any combat duty in Vietnam. He described the following stressful incidents: constant racial fights on Midway Island, his roommates were incarcerated for attempted murder; being arrested for slaying goony birds; his own arrest for attempted murder of a Navy Seal; and talking 1500 men into charging the quarter deck on Midway to take over the island. In order for service connection to be awarded for PTSD based on an in-service stressor, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (2011); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2011); Cohen v. Brown, 10 Vet. App. 128 (1997). Service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Fossie v. West, 12 Vet. App. 1, 6 (1998). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.30(f) (2011); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." Id. In this case, the evidentiary record does not show that the Veteran engaged in combat with the enemy, and he does not contend otherwise. Accordingly, the presumptions of exposure to alleged stressors associated with combat do not apply in this case to support the veteran's PTSD claim, and he must instead support his claim by evidence of alleged stressors otherwise supportive of his claim. 38 U.S.C.A. § 1154(a), (b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.304(f) (2011); Hayes, supra. Similarly, in the absence of evidence establishing a diagnosis of PTSD during service, service connection for PTSD on that basis is also not warranted. Formerly, if the claimant did not engage in combat with the enemy or if the claimed stressors were not related to combat, then the claimant's statements alone were not sufficient to establish the occurrence of the claimed stressors, and his testimony would have to be corroborated by credible supporting evidence. Cohen, supra. With regard to stressor verification, the VA regulation at 38 C.F.R. § 3.304(f) has recently been amended by the Secretary of Veterans Affairs, by the addition a new paragraph which liberalizes, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. The paragraph reads as follows: 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 that 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39,843-852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3) (2011). The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010. Still another amendment was to relax the type and amount of evidence needed to substantiate a claim that is predicated on personal or sexual assault. 38 C.F.R. § 3.304(f)(5) (2011). Indeed, in this latter type of claim, there is an exception to the rule announced in Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996), permitting after-the-fact medical nexus evidence to etiologically link a PTSD diagnosis to an incident during the Veteran's military service. See YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). The Board also is required to consider evidence of behavior changes, etc., as credible indications a claimed personal or sexual assault stressor occurred. 38 C.F.R. § 3.304(f)(1) (2011). Based on the foregoing, the Board finds that this matter should be remanded and that upon remand, the Veteran should be provided a VA psychiatric examination to identify the Veteran's current psychiatric disorders and to determine (1) whether the Veteran meets the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders, 4th ed., (DSM-IV) criteria for a diagnosis of PTSD, (2) if PTSD is diagnosed, whether it is at least as likely as not that the PTSD is due to a confirmed or verified in-service stressor, and/or (3) whether it is at least as likely as not that a psychiatric disorder other than PTSD was caused by the Veteran's military service or any event that occurred therein. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2011) and 38 C.F.R. § 3.159(c)(4) (201 ; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran should also be afforded an opportunity submit all other relevant records. In this regard, the Board notes that the most recently dated treatment records are from 2010. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his psychiatric symptoms, on appeal. Any records that are not currently included in the claims file should be obtained and added to the file. With any necessary authorization from the Veteran, the AMC should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and Veteran is to be informed of such. If pertinent records are received, the AMC should ensure that VCAA examination and medical opinion requirements under 38 C.F.R. § 3.159(c)(4) are met as to this issue. 2. Schedule the Veteran for a VA psychiatric examination for the purpose of ascertaining whether any currently diagnosed psychiatric disorder is etiologically related to active service. The claims folder must be made available and reviewed by the examiner. All indicated testing should be conducted. a. As part of the exam, the examiner must identify any stressor or stressors that are established by the record, to include whether the evidence indicates that the claimed in-service assault(s) occurred. b. Thereafter, the examiner should conduct a VA psychiatric examination. If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record (whether by the RO or in the case of the alleged personal assaults, in the examiner's opinion) was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors sufficient to produce PTSD. Any opinions expressed by the examiner must be accompanied by a complete rationale. c. If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran's active service. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the most recent supplemental statement of the case or statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2011), 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) (2011).