Citation Nr: 1237284 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-29 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to March 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this issue for further evidentiary development in December 2008, September 2009, and January 2012. The case has now been returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Initially, the Board notes that the Veteran's service records were destroyed in an accidental fire. In a case such as this, VA has a heightened obligation to assist the Veteran in the development of his claims. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In that regard, this case has been remanded on 3 previous occasions in part to attempt to verify the Veteran's claimed in-service stressors. While further delay is regrettable, the case must again be remanded. The Veteran asserts that he witnessed two stressful events involving the deaths of fellow servicemen while he was stationed in Heidelberg, Germany and that he currently suffers from PTSD as a result. First, he relates that he was crawling under barbed wire during an obstacle course exercise in September 1953, when three or four men in front of him were killed by accidental live machine gun fire. The Veteran indicated that the soldiers killed were from Company C or D. The Veteran's Department of Defense Form 214 (DD Form 214) indicates that his most significant assignment was to Company B, 112th Infantry Regiment. Next, he states that during combat maneuver exercises in November 1953, he was walking behind a tank which skidded into a ditch, hit a tree, and killed a soldier. Following the January 2012 remand, the AOJ contacted the U.S. Army Joint Services Records Research Center (JSRRC), requesting verification of the Veteran's asserted in-service stressors. However, one of the requests was flawed. The Veteran claimed he saw a soldier killed in November 1953, but the request only noted his assignment to the 112th Infantry Regiment from October 1, 1953 to October 31, 1953. Thus, the request did not indicate a search should be made during the correct time period. In addition, the JSRRC's responses, via the Defense Personnel Records Information Retrieval System (DPRIS), are somewhat unclear. Specifically, the responses indicate that the National Archives Records Administration (NARA) was unable to locate copies of unit records submitted by the "1st Battalion, 12th Infantry for the January ? December 1953 time period." The Veteran was in the 112th Infantry Regiment, which is noted later in the responses (addressing Morning Reports). It is unclear from the responses if records for the 12th Infantry Regiment or the 112th Infantry Regiment were not available. In addition, the date of unavailable records is unclear. The response is open to interpretation given the question mark between the words January and December. From the response, the Board cannot ascertain whether records could not be found for the January to December 1953 time period, the January 1954 and December 1953 time period, or some other time period. Finally, one of the JSRRC responses indicates no casualties in August 1953 which is not a month in which either of the stressors reportedly occurred. This again suggests that the correct dates were not researched. In addition, the unit is again misidentified as the 1st Battalion, 12th Infantry. As the responses from JSRRC are unclear another search should be undertaken. The JSRRC responses also suggest that the National Personnel Records Center (NPRC) be contacted to research unit Morning Reports in an attempt to document the stressors. VA subsequently contacted NPRC and requested that morning reports from the Veteran's unit be searched from September 1, 1953 to October 30, 1953 for remarks regarding "PTSD". No remarks were located according to NPRC. An additional search is necessary as the date range does not cover both of the Veteran's stressors. Specifically, the Veteran indicates that he witnessed a soldier killed in November 1953. Moreover, it is unclear if NPRC searched the Morning Reports for the word "PTSD" or for the claimed stressors as described above. The request suggests the former. On remand, the NPRC should again be contacted to review morning reports relevant to the Veteran's claim. Specific instructions are detailed below. A remand by the Board confers on the appellant, 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 complied with, the Board itself errs in failing to ensure compliance. As such, another remand, with ensuing delay, is unfortunately required to attempt to verify the Veteran's reported in-service stressors related to his service with the 112th Infantry Regiment. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. A request should be submitted through the appropriate official channels for verification of both claimed in-service stressor events (the obstacle course accident in September 1953 and the tank accident in November 1953, both occurring in Heidelberg, Germany). The relevant units for researching purposes are Companies B, C, and D of the 112th Infantry Regiment. 2. Request that NPRC search morning reports of Companies B, C, and D of the 112th Infantry Regiment from September 1, 1953 to November 30, 1953 regarding an obstacle course accident in September 1953 and a tank accident in November 1953, both resulting in American fatalities. 3. If searches are undertaken using a unit designator other than Companies B, C, and D of the 112th Infantry Regiment - for example, 1st Battalion, 112th Infantry Regiment - verification should be obtained that Companies B, C, and D were a part of that (parent) organization during the specified time period. 4. If, and only if, the Veteran's reported stressor(s) are verified, schedule him for a VA psychiatric examination. The claims file must be made available to and be reviewed by the examiner and the examination report should note that the claims file was reviewed. The examiner should specifically offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any psychiatric disorder demonstrated during the pendency of the appeal, to include, but not limited to depression and PTSD, is related to the Veteran's period of active service. The examiner is requested to specifically address whether the Veteran met the diagnostic criteria for a diagnosis of PTSD, depression, or any other psychiatric disorder at any time during the appeal period. In this regard, the examiner should specifically address the April 2007 private diagnoses of PTSD and a depressive disorder, and comment as to the effect, if any, of the Veteran's memory problems on his meeting or not meeting the DSM-IV criteria in April 2007, and at any time since. Because the Veteran is competent to report the onset of anxiety, depression, and nightmares in service, as this requires only personal knowledge, not medical expertise, as it comes to him through his senses, the examiner must also specifically address the Veteran's report of his psychiatric symptoms having first manifested during his period of active service in determining whether any current psychiatric disorder is related to active service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). The examiner must provide the rationale, with citation to relevant medical findings, for the opinions provided. 5. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).