Citation Nr: 1309902 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-07 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1961 to April 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2007 (service connection for a back condition and PTSD), March 2010 (service connection for major depressive disorder with anxiety), and April 2011 (reconsideration of service connection for major depressive disorder with anxiety) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2013, the Veteran testified at a Videoconference hearing before the undersigned Acting Veterans Law Judge. A copy of the hearing transcript is of record. Although the claim certified for appellate review was characterized as entitlement to service connection for PTSD, the Board observes that VA treatment records show additional psychiatric diagnoses of major depressive disorder with anxiety and mood disorder due to general medical condition. In light of the Court's decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue as stated on the cover page has been restyled. A review of the Veteran's Virtual VA electronic claims file reveals additional relevant VA treatment records pertinent to the claim for service connection for an acquired psychiatric disorder, to include PTSD. 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 issue of entitlement to service connection for an acquired psychiatric disorder, to include 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 At the February 2013 Videoconference hearing, the Veteran withdrew his appeal as to the issue of entitlement to service connection for degenerative disc disease of the lumbar spine. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal by the Veteran concerning the claim for entitlement to service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the February 2013 Board hearing, the Veteran requested to withdrawal his claim for entitlement to service connection for degenerative disc disease of the lumbar spine. As the Veteran has withdrawn his appeal as to the issue of entitlement to service connection for degenerative disc disease of the lumbar spine, there remain no allegations of error of fact or law for appellate consideration. The Board, therefore, has no jurisdiction to review this issue. ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is dismissed. REMAND The Board finds that additional development is warranted prior to adjudication of the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that his currently diagnosed acquired psychiatric disorder, to include PTSD, was incurred in or caused or aggravated by active service. During the February 2013 hearing, the Veteran alleged that (1) in July 1961, while stationed at Fort Benning, Georgia, he witnessed one or more recruits (names and unit assignments unknown) die and/or become severely burned when they were struck by lightning during a basic training field training exercise; (2) sometime between November 1962 and April 1963 while stationed in Baumholder, Germany, and assigned guard duty for a number of weeks on the Berlin Wall he witnessed people killed while attempting to escape from East Germany and he has given conflicting reports as to whether he was shot at during that time; (3) upon leaving Germany to return to the U.S. the ship that he was aboard (name unknown) was sent to Cuba and his unit was to be one of the first on land to dismantle missiles during the Cuban Missile Crisis, however, within 20 miles of reaching shoreline an agreement was reached to dismantle the missiles. He stated that he feared for his life and safety while on guard duty on the Berlin Wall and while en route to Cuba. He reportedly experiences intrusive thoughts and difficulty sleeping due to nightmares pertaining to the above alleged incidents, he becomes panicky during thunderstorms, and he frequently wonders "what if" he had been shot at while on guard duty on the Berlin Wall or an agreement was not reached during the Cuban Missile Crisis. He also testified that is coronary care physician related his currently diagnosed to PTSD to his active military service. The Veteran's service treatment records are negative for any findings, complaints, or diagnosis of any signs or symptoms of a psychiatric disorder. His service personnel records are negative for any documentation or indication of involvement in combat. They do, however, contain a June 1963 or 1965 request that he be exempted from his annual reserve training obligation because he was "now working again with a wife and child to support" and he was "having many problems" taking care of his family and himself. Available VA treatment records currently associated with the claims file date from September 2006 to January 2012, and show that diagnoses of chronic PTSD, major depressive disorder with anxiety, and mood disorder due to general medical condition following a May 2007 psychiatric consultation. At that time, the Veteran related his psychiatric symptoms to his alleged in-service stressors pertaining to guard duty on the Berlin Wall and the Cuban Missile Crisis. In August 2007, he related that he witnessed multiple recruits get struck by lightning and die gruesomely during a basic field training exercise. He was reportedly most troubled by that event and had difficulty talking about it. The record contains no discussion as to whether the current diagnosis of PTSD comports with DSM IV criteria for diagnosis of PTSD, whether the claimed stressors are adequate to support a diagnosis of PTSD, or whether the Veteran's current symptoms are related to his claimed stressors or otherwise related to his active military service. Given that the evidence above shows that the Veteran has current psychiatric diagnoses that may be related to his military service, he must be afforded a VA examination to determine the nature and etiology of his claimed acquired psychiatric disorder. It also appears that additional development is warranted regarding verification of the Veteran's claimed stressors. Correspondence and a subsequent addendum received from the U.S. Army & Joint Services Records Research Center (JSRRC)/JSRRC PTSD Coordinator in February 2009 found that "the information from the Veteran is not specific enough nor is data to confirm his stressor(s) available through [the] JSRRC." As discussed below, however, it appears that the record contains information sufficient to submit inquiry to the JSRRC in attempt to verify the claimed stressors and/or request his units of assignment's records and history dating on January 9, 1961, and from October 1962 to April 1963. There is no indication that any attempt has been made to obtain the Veteran's unit's records or history. Additionally, the February 2009 correspondence received from the JSRRC PTSD Coordinator seems to suggests that other military records repositories may have records or information or evidence pertaining to the claimed stressors. As to the alleged lightning stressor, a simple internet inquiry suggests that on July 9, 1961, four soldiers were killed and many more were injured at Fort Benning, Georgia, to include Army Recruit MLD. Using the above newly obtained information, additional development is necessary to determine whether the Veteran likely witnessed fellow recruits killed and injured in this incident as alleged. In this regard, the Veteran does not claim that those killed and/or injured were assigned to his unit. During the February 2013 hearing, the Veteran's representative suggested that safety records be requested pertaining to this stressor. As to the claimed stressor of patrolling the Berlin Wall where he witnessed adults and children killed upon trying to escape from East Germany, and his conflicting reports as to whether he received incoming fire while doing so, the Veteran's service records show that from October 15, 1962 to April 16, 1963, he was assigned to Co. B, 1st Battle Group, 38th Infantry and stationed at Turner Air Base in Frankfurt, Germany. During that time, he served as a forward observer and heavy weapons infantryman and he received medical/dental treatment at a unit aid station in Baumholder, Germany. The JSRRC has indicated that there were more than 136 deaths of people who were killed at or near the wall while trying to escape East Germany during a time period that includes the dates of the Veteran's service in Germany. As to the claimed stressor of being within 20 miles of the coast of Cuba prior to learning that an agreement had been met as to dismantling the missiles, the Veteran's service personnel records are negative for any evidence of this. Rather, they show that he left Turner Air Base in Frankfort, Germany and was en route to the United States on April 16, 1963. He was discharged from service at Fort Benning, Georgia, only two days later on April 18, 1963. The Board also notes that in April 2009 and April 2011 statements, the Veteran reported that he received VA treatment a few years following his discharge from service at the Mobile OPC, however, he was reportedly advised by a records specialist at that facility that any records dating prior to 1998 were destroyed in Hurricane Katrina. There is no indication that an attempt has been made to verify this information or to obtain retired/archived VA treatment records dating prior to 2006. Similarly, a March 2011 CAPRI inquiry shows that the Veteran may have received treatment through the Department of Defense and the South East Louisiana VA Health Care System, however, there is no indication that such records have been requested. Also, a January 2012 psychiatric treatment note states that the Veteran occasionally receives psychiatric treatment at "the Vet Center." Finally, during the February 2013 hearing, the Veteran indicated that he has received ongoing VA treatment at the Mobile, Alabama OPC for an acquired psychiatric disorder dating since they were most recently obtained in January 2012. Accordingly, Vet Center treatment records, if any, and VA and federal treatment records dating from April 1963 to 2006, and since January 2012, must be requested. 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) (2012). Expedited handling is requested.) 1. Furnish the Veteran with corrective VCAA notice (38 C.F.R. § 3.159(b)) addressing the expanded claim for service connection for a psychiatric disorder, to include PTSD. 2. The RO/AMC must request from all appropriate records repositories, to include JSRRC and NARA, all records and geographic locations of service for the Veteran's units of assignment on July 9, 1961 (Co. B, 1st Battle Group, 11th Infantry and/or 2nd Infantry Division) when he allegedly witnessed one or more fellow recruits killed and/or severely burned when they were struck by lightning during a field training exercise at Fort Benning, and from October 15, 1962 to April 18, 1963 (Co. B, 1st Battle Group, 38th Infantry), when he allegedly witnessed people killed and may have been shot at while on guard duty on the Berlin Wall and when was within 20 miles of Cuba in a mission to dismantle missiles during the Cuban Missile Crisis in April 1963 prior to learning that the Crisis had been resolved. All pertinent follow-up must be undertaken. 3. Thereafter, the RO/AMC must make a determination for the record for review by the VA examiner who performs the examination requested herein as to whether each alleged stressor has been verified and/or is reflective of engagement in combat service. 4. Contact any appropriate records repositories and request any post-service VA treatment records, to include any records retired and/or archived, dating from April 1963 to September 2006 from the Mobile, Alabama VA OPC as alluded to by the Veteran, and from the Department of Defense and the South East Louisiana VA HCS as alluded to in a March 2011 CAPRI inquiry titled "remote sites." Additionally, ongoing VA medical and psychiatric treatment records, if any, must be obtained from the Biloxi VAMC dating since January 2012 and the Mobile, Alabama VA OPC dating since November 2009. Also request all records pertaining to the Veteran from Vet Centers in Mobile, Alabama, and Biloxi, Mississippi, as alluded to by the Veteran in a January 2012 VA treatment note. If the RO/AMC cannot locate the requested records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 5. Thereafter, schedule the Veteran for a VA mental disorders examination to determine the nature, onset, and etiology of any diagnosed acquired psychiatric disorder. All indicated tests must be accomplished. The claims folder, to include any relevant records in Virtual VA, and a copy of this REMAND must be made available to the examiner. The examiner must acknowledge that this review was completed. For each diagnosed psychiatric disorder the examiner must address whether it is at least as likely as not that the disorder is related to service. The examiner must provide a complete written rationale for any opinion offered. In so doing the examiner must: (a) Explain the basis for each diagnosis offered, and how that diagnosis is justified under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). (b) If the criteria for a diagnosis of PTSD have been satisfied, the examiner must comment upon the presence or absence of any link between that diagnosis and any verified in-service stressor. (In September and November 2007, January and April 2009, April 2011, and April 2012, the appellant provided stressor statements, but as of the date of this remand, no stressor has been independently verified, or shown to be consistent with the time, place and circumstances of his service. That finding may change depending on the results from development outlined above.) In so doing, the examiner shall specifically address if the Veteran's claimed stressors relate to the Veteran's fear of in-service hostile military or terrorist activity. (c) The examiner must consider the lay statements of the Veteran. The examiner must also opine whether it is at least as likely as not (50 percent probability) that any acquired psychiatric disorder is due to or aggravated by (permanently worsened beyond normal progression) by the Veteran's service-connected bilateral hearing loss and tinnitus disabilities. The examiner must acknowledge and address the March 2011 audiological examination report indicating that the Veteran has poor social interactions and extreme difficulty hearing speech. 6. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 7. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Thereafter, the case must be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on this matter. 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs