Citation Nr: 1237260 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 05-03 219 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to July 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the RO in Los Angeles, California. The Board remanded this matter in June 2009 and February 2012 for additional development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's acquired psychiatric disability, variously diagnosed as recurrent major depression, depressive disorder, dysthymic disorder, and mood disorder not otherwise specified, is at least as likely as not due to service. CONCLUSION OF LAW An acquired psychiatric disability, variously diagnosed as recurrent major depression, depressive disorder, dysthymic disorder, and mood disorder not otherwise specified, was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has been diagnosed with psychiatric disabilities other than PTSD. In order to establish service connection on a direct basis, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran was evaluated at a May 2012 VA examination. The examiner diagnosed him with a dysthymic disorder. The Veteran's VA treatment records contain an active problem list showing diagnoses of recurrent major depression, a depressive disorder, a mood disorder not otherwise specified, and a personal history of alcoholism. The Veteran was briefly diagnosed with a mood and anxiety disorder in January 2000. His diagnosis was changed to a depressive disorder by March 2000. The element of a current disability is well established. The Board notes that the Veteran was also diagnosed with bipolar disorder while receiving treatment at VA in the early 1990s. The diagnosing psychiatrist wrote an October 2001 evaluation report repudiating that earlier diagnosis and indicating that the Veteran instead suffered from PTSD. As the diagnosing psychiatrist repudiated the diagnosis, the Board finds that the Veteran does not have bipolar disorder. The PTSD issue is discussed in the Remand section below. These diagnoses were also based on the Veteran's service and the events at Thule Air Force Base (AFB). While the Veteran's account has not been verified by independent evidence, service connection for a psychiatric disability other than PTSD does not require stressor confirmation. See generally 38 C.F.R. § 3.304. The Veteran's service personnel records show that he had several disciplinary actions against him and that he was thought to be emotionally unstable. The Veteran had several episodes of drunkenness, fought or threatened his fellow soldiers and required constant supervision to complete his duties. A chaplain wrote a statement regarding the Veteran's behavior during discharge proceedings, indicating that the Veteran was emotionally immature and that his demeanor was "dejected." These records provide evidence in favor of the existence of an in-service psychiatric disorder, but, because they are personnel and not medical records, whether the Veteran actually had a psychiatric disability during service cannot be determined solely from records review. The Veteran underwent a May 2012 VA examination. The examiner reviewed the record and then interviewed and examined the Veteran. The examiner concluded that the Veteran's dysthymic disorder was the result of service. The examiner indicated that the disorder had been present during service and had persisted since that time. The examiner noted that the Veteran's account of the Cuban Missile Crisis was incredible in light of the dates discussed above, but found the Veteran's account of his symptoms and their onset sufficiently credible that he related the Veteran's in-service complaints to a present diagnosis of dysthymic disorder. Thus, the evidence of record shows that the Veteran has a current dysthymic disorder, which began during service and has been present since that time. As such, the Board finds that the evidence in favor of the Veteran's claim is at least in equipoise. Consequently, the benefit-of-the-doubt rule applies, and the service connection claim for a psychiatric disability other than PTSD variously diagnosed as recurrent major depression, depressive disorder, dysthymic disorder, and mood disorder not otherwise specified, must be granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The claim of service connection for a psychiatric disability other than PTSD has been granted, as discussed above. As such, the Board finds that any error related to the duties to notify or assist on that claim is moot. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). ORDER Entitlement to service connection for a psychiatric disability variously diagnosed as recurrent major depression, depressive disorder, dysthymic disorder, and mood disorder not otherwise specified, is granted. REMAND The Board must remand the service connection for PTSD claim for additional development. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board's June 2009 remand of this issue instructed that the RO contact the U.S. Army and Joint Services Records Research Center (JSRRC) to attempt to verify the Veteran's alleged stressors. The RO failed to do so. The RO did try to confirm the Veteran's stressors through other agencies, but the fact remains that the RO failed to contact the JSRRC directly. An April 2010 formal finding was made by the JSRRC Coordinator stated that the information required to corroborate the stressful event was inadequate to pursue verification by the JSRRC. In particular, the RO found that the Veteran had failed to provide two things for the search to occur, first, the full name of R.R. who the Veteran alleged committed suicide during his service at Thule AFB and, second, a two month date range in which his alleged stressors occurred. The Board notes that the full name of R.R. was contained in the March 2003 stressor statement, of which the Veteran has submitted numerous copies. As to the second, the Board finds that an attempt should be pursued despite the fact that the Veteran has not narrowed the window to two months. The Veteran had only six months service at Thule AFB. He also reported a large number of stressors. The June 2009 Board remand concluded that a search was necessary and the RO must perform the search. If necessary, the RO should make three requests covering two months each of the Veteran's time in Thule from January to June 1963. The Board remands for compliance with the earlier remand. The Board will restate the stressors for the record. The Veteran was assigned to Battery C, 4th Missile Battalion, 55th Artillery in Thule, Greenland from January to July 1963. The Veteran contends that while stationed there he helped conduct a rescue operation of a supply truck that was blown off the road due to a severe snowstorm. During the rescue, the passengers of the truck could not be retrieved until the truck thawed enough to take them out. In addition, the Veteran also contends that he found a fellow service member, R.R., who committed suicide by hanging himself. On another occasion, the Veteran contends he observed a service member who committed suicide by shooting himself. The Veteran's personnel records note that the Veteran had a number of behavioral issues while in service in Greenland, and there were claims that he was emotionally unstable. Accordingly, the case is REMANDED for the following action: 1. Prepare a letter asking the U.S. Army and Joint Services Records Research Center (JSRRC) to provide any available information which might corroborate the Veteran's claimed stressors, including the suicide of fellow soldier, R.R. The RO should provide JSSRC with a description of the Veteran's claimed stressors, and a copy of the Veteran's written statement dated March 31, 2003, as well as the Veteran's representative's June 9, 2009 Appellant's Brief. The RO should provide JSSRC with copies of the Veteran's personnel records, showing service dates, duties, and units of assignment. Given that the Veteran had only six months of service at Thule, the RO should use three two month windows of time to request the records from the JSRRC. 2. When the above actions have been accomplished, readjudicate the claim and issue a supplemental statement of the case. Then afford the Veteran the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter 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. 2011). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs