Citation Nr: 1302672 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 09-40 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his sister ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Phoenix, Arizona. In December 2009, the Veteran and his sister testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In April 2010, the Board reopened the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Board then remanded the newly reopened claim for further development. Unfortunately, for the reasons described below, additional action is necessary in order to fairly adjudicate the claim. The Board has reviewed additional documents included in the Virtual VA system; however, no new records pertinent to this appeal were found therein. 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's review of the claims file reveals that further action on the appeal is warranted. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran in this case seeks service connection for an acquired psychiatric disorder, to include PTSD, based on an in-service personal assault. The Veteran alleges that he was aboard the U.S.S. Duluth in December 1977 while it was anchored in Hong Kong Bay. Hearing Testimony pp. 6-7. He claims that he was in the berthing area of the ship when he became engaged in a physical altercation with another sailor. Id. at 7. He has stated that the altercation was severe and that he struck the other sailor in the head with a wrench. VA Form 9. He testified that, after the altercation, he was taken into custody by the Master at Arms of the ship and placed in the brig for 30 days. Hearing Transcript at 8. The Veteran stated that he was subsequently taken to a Captain's Mast proceeding and then returned back to the brig. Id. He also testified that he suffered head injuries from this altercation and indicated that he reported these injuries to his superior officer. Id. at 10, VA Form 9. He essentially contends that this fight in service ruined the entire course of his life thereafter. See, e.g., id. at 12. Throughout the appeal, he has attributed his addiction to drugs, his trouble with the law, and his trouble with relationships to the fight. The Veteran's service treatment records are devoid of any documentation of injuries related to the physical altercation as contended. His personnel records do not reveal confinement in the brig in December 1977, any participation in Captain's Mast, or any discipline whatsoever pertaining to a physical fight at that time. On separation, the examining physician found no psychiatric abnormalities, and the Veteran voiced no complaints in that regard. Nevertheless, in support of the claim, the Veteran's sister testified at the December 2009 hearing that following the incident, the Veteran called home and told his family about the assault. See Hearing Transcript, p. 14. Additionally, the Veteran submitted a November 2008 statement of S.C. (initials used to protect privacy), a fellow sailor, to corroborate the occurrence of the assault. The Board notes that S.C. alleges a different year of the event than the Veteran contends. S.C. also concedes that he has no actual personal knowledge of the incident. As noted by the Board in the April 2010 remand, the Veteran's personnel records do reflect behavioral problems after December 1977. Treatment records show that the Veteran was noted to have "chronic alcohol use" in January 1978, and he began Antabuse therapy in February 1978 to address his alcohol problem. The Veteran was punished on January 4, 1978, for assault, breach of the peace, and drunk and disorderly conduct. He was sentenced to 30 days of correctional custody as a result. Similarly, he received punishment in March 1978 for "wrongfully using provoking words" and assault, and in April 1978, he was punished for unauthorized absence and disobeying a lawful order. At the time of his April 1978 separation from active duty, the Veteran was not recommended for re-enlistment "due to unmilitary like behavior." In an effort to corroborate the assault, the Board ordered additional development in its April 2010 remand. In pertinent part, the Board indicated stated, "A specific request should be made for copies of the deck logs for the U.S.S. Duluth for the month of December 1977, and it should be determined whether there are any other disciplinary records, such as Captain's Mast records. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records." (emphasis in original). In December 2010, the RO requested the deck logs from the National Archives and Records Administration (NARA). In January 2011, the NARA responded, indicating that the deck logs for the U.S.S. Duluth for December 1977 had been located. The NARA concluded that the records for December 1977 did not show disciplinary actions or indicate that a Captain's Mast was held. The RO subsequently readjudicated and denied the claim in April 2011. In a February 2012 Brief, the Veteran's representative argued that the RO's actions constitute a Stegall violation, as the deck logs were located, but copies were not incorporated into the record for review, as ordered by the Board. Additionally, the representative requested that a search for Captain's Mast proceedings be made for the months subsequent to December 1977, as it is possible that the proceeding would not have taken place immediately that month. The representative points out that the Veteran's personnel file reflects non-judicial punishment for violation of the Uniform Code of Military Justice, Article 116, Breach of Peace, and Article 128, Assault, in January 1978. The Board agrees and finds that, if possible, copies of the deck logs should be incorporated into the record for review. Further, the search for any Captain's Mast proceedings should be expanded to include January 1978, February 1978, and March 1978. 38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." If the records are unavailable, VA must notify the Veteran of the identity of the records, the efforts VA made to obtain the records, a description of any further action VA will take on the claim, and notice that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(i)-(iv) (2012). The need for objective corroboration of the in-service assault is accentuated by the results of a March 2011 VA examination. On examination, the Veteran was diagnosed with anxiety disorder, not otherwise specified (NOS), depressive disorder NOS, and psychotic disorder NOS. PTSD was not diagnosed. As for the etiology of the conditions, the examiner attributed his depression to mood problems and post-military stressors. His psychotic disorder was found unrelated to the military because there was no evidence of psychosis in the service treatment records, and the Veteran contended that he began hearing voices after discharge. As for the anxiety disorder, however, the examiner noted the Veteran suffers from a preoccupation with the alleged assault. Factors also contributing to his anxiety include financial stress and stress from maintaining sobriety. The examiner concluded, "based on this information, [the] anxiety he currently experiences is as likely as not related to military service." In summary, the Board finds that the development ordered in April 2010 must be properly completed in order to fairly decide the claim. Upon receipt of the deck logs, an addendum opinion or new medical opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact NARA, and request copies of the deck logs for the U.S.S. Duluth for the months of December 1977 through March 1978. Associate copies of the deck logs into the record. If it is not possible to obtain copies of the deck logs, it should be documented in the claims file. NARA should also conduct a search for any Captain's Mast or disciplinary proceedings that took place on the U.S.S. Duluth from January 1978 to March 1978. Copies of any documentation of such proceedings should be associated with the claims file. If, for any reason, the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 2. Once the above development has been conducted, forward the entire claims file to the VA examiner that prepared the March 2011 report for an addendum opinion. (If the examiner is unavailable, forward the record to another examiner for an opinion as directed below.) The examiner is to be provided access to the claims folder. The examiner is requested to review all pertinent records associated with the claims file, particularly any newly associated deck logs, and indicate whether the information contained in the deck logs changes the conclusions reached in March 2011. The examiner should also discuss the basis of his opinion that the Veteran's current anxiety is likely related to his military service (noting preoccupation with alleged assault), while declining to assign a diagnosis of PTSD, at least in part due to lack of corroboration of the assault. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the prior examiner is not available, or is unable to provide the requested opinion without examining the Veteran, the RO must arrange for the Veteran to undergo a VA psychiatric examination to obtain an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that any psychiatric disorder is in any way causally related to military service. All indicated tests should be accomplished, and all clinical findings reported in detail. The claims file should be made available to the examiner for review prior to entering any opinion, and the examination report should include discussion of the Veteran's documented medical history and assertions. 3. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim should be readjudicated. All applicable laws and regulations should be considered. If the benefit sought remains denied, the appellant should be provided a supplemental statement of the case and be given the opportunity to respond. 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. 2012). _________________________________________________ JESSICA J. WILLS 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) (2012).