Citation Nr: 1313816 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 11-14 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A review of Virtual VA reveals no records relevant to the claim on appeal. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran has asserted that he has PTSD as a result of witnessing a plane crash while in service. The Veteran explained in an April 2010 statement that he was stationed at Fort Bragg, North Carolina, with the 505th Parachute Infantry and was assigned to be a "Jump Master" parachutist. In November 1953, after the Veteran's regiment had finished a practice jump, the 504th Parachute Infantry was in the midst of their jump when a C-119 airplane "lost an engine, dropped out of formation, and hit and killed ten troopers in their chutes." The Veteran stated that when he looked up to see this, he was "horrified, because these were my fellow comrades," and he felt it easily could have been him. He stated that he had to "help pick up the bodies and body parts," and that today he continues to have nightmares about this incident. The RO attempted to verify this stressor event. The Military Personnel Records Center responded to the RO in April 2010 that all service treatment records and personnel records of the Veteran were destroyed in the St. Louis fire in 1973. The Board points out that VA has a heightened duty to assist the Veteran in developing his claim since service treatment records may have been lost. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). In July 2010 the RO contacted the Joint Services Records Research Center (JSRRC) regarding the November 1953 incident. The JSRRC response indicated that there had been a plane crash at Fort Bragg on November 17, 1953, but that the 505th Parachute Infantry was not included in the historical record as participating in the operation or in the recovery of the accident victims. Some of the Veteran's service treatment records are still in existence and have been associated with the claims file. They show that the Veteran was treated for medical ailments at Fort Bragg in 1952 and 1954, and his DD Form 214 shows that he received a Good Conduct Medal while serving with the 505th Parachute Infantry in October 1954 at Fort Bragg, as well as basic airborne training and a Parachutist Badge. In light of this evidence, it appears clear that despite the lack of verification from JSRRC, it is highly likely that the Veteran was at Fort Bragg at the time of the plane crash, serving in the capacity of a parachutist. It is therefore unlikely that he would not have seen or at least been very aware of the November 1953 plane crash. The Veteran's lay account of the November 1953 accident is entirely consistent with his service and appears to be credible for the purpose of determining whether the Veteran now has PTSD as a result of this stressor event. The Veteran's private treatment records show that he has begun psychiatric treatment for PTSD with a private psychiatrist. However, the Veteran's private psychiatrist did not have access to the Veteran's records, and it is not clear that the Veteran was provided a diagnosis which meets all of the criteria under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), as is required by VA regulations. See 38 C.F.R. §§ 4.125, 4.130 (2012). VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. In the current case, the record contains evidence to suggest that the Veteran was present at Fort Bragg at the time of the November 1953 plane crash, which is sufficient to verify his alleged stressor. The Veteran has also submitted private medical records showing that he has been undergoing psychiatric treatment for PTSD. Under these circumstances, the Board finds that examination of the Veteran to obtain a medical opinion by a VA psychologist or psychiatrist, based on full consideration of the Veteran's documented medical history and assertions and supported by clearly stated rationale, is needed to resolve the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as this claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO/AMC should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. While the matter is on remand, the RO/AMC should acquire any more recent medical records from the Veteran's private psychiatrist, Dr. H. Jabbour. The Veteran has indicated that he planned to receive continuing psychiatric treatment from his private psychiatrist, but records only up to April 2010 have been acquired and associated with the claims file. The RO/AMC should contact the Veteran requesting that he submit information and, if necessary, authorization, for any psychiatric treatment he has received. The RO/AMC should then attempt to obtain any additional evidence for which the Veteran provides sufficient information and authorization, following the current procedures prescribed in 38 C.F.R. § 3.159, and associate such records with the claims file. 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. The RO/AMC should send to the Veteran a letter requesting that he provide sufficient information and, if necessary, authorization to enable it to obtain any additional medical evidence pertinent to the appeal that is not currently of record, including authorization for medical records from Dr. H. Jabbour. After he has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. He should be notified of any unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After associating all outstanding pertinent records related to the Veteran's claim, schedule a VA psychiatric examination by a psychiatrist or psychologist. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the record, and examination of the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has PTSD related to witnessing the November 1953 plane crash at Fort Bragg. The opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. The opinion should include a discussion of whether the claimed stressor is sufficient to support a diagnosis of PTSD. In addition, any other psychiatric impairment found should be set out. If psychiatric impairment other than PTSD is found, the examiner is asked to opine as to whether it is at least as likely as not (50 percent chance or greater) that the psychiatric disorder, other than PTSD, onset during the Veteran's period of service or is otherwise etiologically related to the Veteran's period of service. The examiner should utilize the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in arriving at diagnoses and identify all existing psychiatric diagnoses. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, that all new medical opinions adequately address the questions above, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 5. After completing the requested actions, the RO/AMC should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran shall be provided with a supplemental statement of the case. An appropriate period of time shall be allowed for response. The appellant 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. 2012). _________________________________________________ MICHAEL D. LYON 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).