Citation Nr: 1313844 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-35 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board remanded the Veteran's case for additional development in March 2011. The case is again before the Board for appellate review. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran served on active duty from February 1973 to February 1975. He is seeking entitlement to service connection for a psychiatric disorder, to include PTSD. He submitted an initial claim for service connection for a nervous condition in March 1975. He did not provide any specific information but did say he was treated in April 1974 which would indicate the treatment occurred during service. The Veteran's service treatment records (STRs) were obtained. They were negative for treatment of a psychiatric disorder. The Veteran's January 1975 separation physical examination was also negative for findings of any such disorder. The Veteran was scheduled for a VA examination but failed to report. The RO denied his claim for service connection by way of a rating decision dated in June 1975. The rating decision noted there was no evidence of a psychiatric disorder in service. Associated with the claims folder is a VA Form 10-7131, Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action, that requested the RO to provide information about the Veteran's claims number and verify his military service as shown on the form in June 1975. The form was from a VA outpatient facility in Rochester, New York. The form contained a notation in block 6 that medical care for a nervous condition was to be provided to the Veteran on a prima facie basis of eligibility. The entry further stated that the Veteran was treated at Fort Walton Beach; Eglin Air Force Base (AFB). A copy of the recent rating decision was requested. The Veteran was provided notice of the denial of his claim for service connection in July 1975. The Veteran sought to reopen his claim for service connection for a psychiatric disorder, to include PTSD, in December 2008. He included stressor statements of witnessing the death of a recruit during basic training as well as being lied to by his recruiter. The recruiter lied to the Veteran that his military occupational specialty (MOS) would allow him to be a physical education teacher after separation from service and that the Veteran would be able to try out for the Army hockey team. The Veteran listed treatment for depression and PTSD with his claim and gave the dates of treatment as from 1983 to the present. He said the treatment was from a VA outpatient facility in Rochester. He later submitted an authorization to obtain records from the same VA facility but listed the dates of treatment as from October 2008 to December 2008. VA treatment records have been obtained for the period from November 2008 to November 2009. The initial entry noted that the Veteran was seeking to establish care with VA in November 2008. There was no mention of prior VA treatment. A social work assessment of December 2008 reviewed the Veteran's claimed stressors. The Veteran was given Axis I diagnoses of depressive disorder, not otherwise specified (NOS), non-combat PTSD and cannabis abuse. An entry from March 2009 noted that the Veteran was being prescribed Xanax by a private physician. Additional social work entries recorded the Veteran's description of events in service, to include his statement that he witnessed the death of a recruit. The Veteran was seen by a psychiatrist beginning in August 2009. He was diagnosed with mood disorder, NOS, chronic insomnia and cannabis abuse. The August 2009 entry also noted the name of the Veteran's private physician, P. R. Stahl, M.D. and that a copy of the assessment was to be sent to Dr. Stahl. In regard to the Veteran's claimed stressors, he submitted a statement from [redacted], dated in January 2009. Mr. [redacted] said he was in basic training with the Veteran at Fort Dix, New Jersey, in July 1973. He recalled an event where all of the platoons were gathered in a formation and marched to the rifle range. It was a hot morning. They were told to pick up the pace and then told to double time or run. He said they were in deep sand at this point and that the formation was broken down and everyone strung out. He recalled that it was hot and humid and he was focused on making it. He said he recalled seeing a drill instructor (DI) pulling on the collar of a recruit that had collapsed in the sand. He said the DI was dragging the recruit and yelling for him to get up. Mr. [redacted] said he saw that and kept running. He added that he later heard that the recruit had stopped breathing for five minutes but was not sure how he heard the information. He said they never saw the recruit again. He also said they were told the next day to concentrate on their training and forget what had happened. The Veteran has related several versions of the event involving the recruit. In several statements he said that he observed the recruit falling and being abused by the DI. In other statements, to include treatment entries, he has said he went to the recruit to try and help him but was forced away. Although he has said the recruit died he has not said the recruit died at the time of the incident but that he subsequently learned of his death. The Veteran and Mr. [redacted] gave the recruit's name as [redacted]. The Veteran has said the recruit was in a different company from him. The Veteran has also said they were told to forget about the incident and focus on their training. The Veteran provided specific information as to his stressors, his unit of assignment and that of the recruit with the submission of a VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) in March 2009. The RO contacted the U. S. Armed Services Center for Research of Unit Records (CURR). A database search was negative for evidence of an individual named [redacted], or a variant of the spelling, having died in the U.S. From July 15, 1973, to August 31, 1973. The Veteran submitted a letter from a private psychologist, E. Michelucci, Ph.D., dated in January 2010. Dr. Michelucci reported he had evaluated the Veteran in December 2009. His evaluation was based on interviews of the Veteran. Dr. Michelucci opined that the Veteran's psychological adjustment was clearly affected by his witnessing a comrade's death, despite his efforts to prevent it. He provided a diagnosis of PTSD. The Board remanded the case for additional development in March 2011. The Veteran was afforded a VA examination in April 2011. Unfortunately, the development requested in the remand had not yet been conducted and the Veteran's claims folder was not provided to the examiner. The examiner did provide a detailed report. She specifically cited several times to the VA social work entry dated in December 2008. She also cited to a document she referred to as "SS (4/5/2011)." This was a "stressor statement" from the Veteran she had reviewed that was dated April 5, 2011. This document is in the claims folder. The examiner also cited to what appears to be additional testing done by VA in November 2010. She specifically cited to results of the Beck Depression Inventory (BDI) and a Personality Assessment screener both dated November 22, 2010. The examiner did not provide a diagnosis of PTSD. She did provide Axis I diagnoses of anxiety disorder, NOS, cannabis abuse in full, sustained remission and depressive disorder, NOS. The examiner stated that she could not provide the requested opinion as to whether any diagnosis was related to service as she had not been provided with the claims folder. In providing the diagnoses the examiner noted that she had reviewed VA records which appear to have been electronic records. The November 22, 2010, entry cited above is not included in the claims folder. Further, there are no electronic medical records for the Veteran in Virtual VA. The AMC also sought corroboration of the claimed death of the recruit stressor from the U. S. Army and Joint Services Records Research Center (JSRCC) (formerly Center for Unit Records Research (CURR)). A negative reply was received in February 2012. A database search for a casualty by the name of [redacted] in New Jersey in 1973 was negative. The AMC also contacted the U. S. Army Crime Records Center for evidence of a death of a recruit at Fort Dix from July to September 1973. A negative reply was received in July 2012. A request for a search of morning reports for the Veteran's entire period of assignment at Ft. Dix, August 6, 1973, to September 22, 1973, was negative in July 2012. The AMC obtained a medical opinion in September 2012. The VA physician noted that the prior examiner had not provided the requested opinion because the claims folder was not available for review. The examiner said he had reviewed the claims folder. He cited to several treatment entries, to include those from November 22, 2010. He did not address the diagnosis of PTSD provided by Dr. Michelucci. The examiner stated that the Veteran did not meet the diagnostic criteria for PTSD and that the diagnoses of anxiety disorder, NOS and depressive disorder, NOS, were not related to service. The examiner said the Veteran's STRs were negative for mental health complaints or evaluations. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Additional development is required in this case. In that regard, the VA Form 10-7131 provides information that there may be VA medical records showing treatment for a psychiatric disorder immediately after service. A request for such records must be made. The Veteran's complete personnel records must be obtained. He told the April 2011 VA examiner about his efforts to get out of the service and his letter writing to that extent. He also told VA healthcare providers that he was disgruntled and wanted out of the service and that he wrote to numerous individuals in an effort to be discharged. The Veteran related that he was reassigned from his unit at Fort Benning, Georgia, to Florida to work. This reassignment is not reflected on the Veteran's DA Form 20; however, there are several STR entries for treatment of unrelated conditions at Eglin AFB in 1974. This same AFB is referenced in the VA Form 10-7131. The Veteran must be afforded a new VA examination but only upon completion of all requested development. The additional evidence, or determination that there is no additional evidence, is necessary in evaluating whether any current disability is related to service. All VA records relied on by the VA examiner must be included in the claims folder or Virtual VA. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for a psychiatric disorder since service. The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured (or determined not to exist) and associate them with the claims folder. The Veteran should be asked to clarify his initial contact with VA after service and whether he received medical treatment at a VA facility. There is a VA Form 10-7131 of record that would imply the Veteran received outpatient treatment at a VA outpatient facility in Rochester in 1975. Appropriate development should be undertaken to obtain any records related to this contact with VA. This would include the treating facility retrieving any records that may have been retired. It appears that the VA examiner of April 2011 cited to VA treatment records not in the claims folder or in Virtual VA. In particular, a BDI and personality assessment dated November 22, 2010. The AOJ must ensure that all relevant VA records are either included in the claims folder or Virtual VA. The current VA treatment records also reflect the Veteran as receiving treatment from a private physician during the pendency of his appeal. This physician has prescribed psychotropic medications for the Veteran. The physician was identified in a VA outpatient entry as P. R. Stahl, M.D. The Veteran should be requested to provide treatment records from Dr. Stahl or authorize the AOJ to obtain them. 2. The Veteran has informed VA healthcare providers that he spent some time in trying to get out of the service due to his perceived mistreatment and lack of proper assignment. He has stated he wrote letters to numerous individuals in that regard. The Veteran was reassigned to an Air Force facility although this is not noted in his Army records. The AOJ should obtain the Veteran's complete military personnel records as they may contain additional evidence pertinent to his claim. His DA Form 20 is already of record and does not constitute his complete personnel records. 3. Only upon completion of the above development, the AOJ should arrange for the Veteran to be scheduled for a psychiatric examination. The claims folder, and a copy of this entire remand, must be provided to and reviewed by the examiner as part of the overall examination. All indicated studies, tests and evaluations, if any, should be performed as deemed necessary by the examiner. The results of any testing must be included in the examination report. Any medical evidence relied on by the examiner must be included in the claims folder or in Virtual VA. The examiner should become familiar with the Veteran's personnel records that may provide information on his discharge as well as his STRs prior to conducting the actual examination. The examiner is advised that the Veteran has claimed two stressors in his claim for service connection for PTSD. One involves his claim of witnessing the death of another recruit during basic training. He has repeated his assertion of witnessing the death through several statements. He submitted a statement from P. [redacted], who was in basic training with the Veteran. Mr. [redacted] provides corroboration of witnessing a recruit having physical difficulties as described by the Veteran; however, Mr. [redacted] never said the recruit died on the scene or that he ever learned of his death at a later time. Prior development by VA has requested record evidence of the death of a recruit at Ft. Dix during the period of the Veteran's training with no such record being identified from several official sources. Although the death of the recruit has not been corroborated as of the date of this remand, the incident of the recruit being in distress can be considered to be corroborated between the Veteran's statements and those of Mr. [redacted]. The Veteran's second claimed stressor is that he was lied to by his recruiter as to his being able to be a physical education teacher, based on his MOS, upon his leaving the Army and being afforded an opportunity to try out for the Army hockey time. He listed these stressors with his claim of December 2008 and specified them again with his submission of his VA Form 21-0781. The Veteran originally obtained a diagnosis of PTSD with his initial social work screening with VA in December 2008. However, later treatment entries did not continue that diagnosis. The Veteran received diagnoses of mood disorder, not otherwise specified, chronic insomnia and cannabis abuse. The Veteran did submit a private psychological report that provided a diagnosis of PTSD in January 2010. The diagnosis was premised on the Veteran witnessing the death of the recruit during basic training; an event not corroborated at this point. If a diagnosis of PTSD is made, the examiner should specify the stressor, or stressors, relied on in making the diagnosis of PTSD. If a diagnosis of PTSD is not made, the examiner should explain in the examination report why such a diagnosis is not warranted. If it is because the Veteran did not meet the necessary criteria, please explain why that is so. If the examination results in a diagnosis of a psychiatric disorder(s) other than PTSD, the examiner should state in the examination report whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran developed the psychiatric disorder(s) as a result of his service, or is such causation unlikely (i.e., less than a 50-50 degree of probability). Any opinion(s) provided should include a discussion of specific evidence of record. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed. The conclusions of the examiner should reflect review of the claims folder, and the discussion of pertinent evidence. If any question cannot be answered without resorting to pure speculation, this should be stated, with an explanation as to why it is so. 4. Thereafter, the AOJ should review the claims folder to ensure that all of the foregoing requested development has been completed. In particular, the AOJ should review the requested examination report and required medical opinion to ensure that they are responsive to and in compliance with the directives of this remand and if they are not, the AOJ should implement corrective procedures. 5. After undertaking any other development deemed appropriate the AOJ should re-adjudicate the issue on appeal. This would include an adjudication of a pre-existing disability if the evidence so shows. If the benefit sought is not granted, the Veteran and her representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the AOJ. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the AOJ. 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). _________________________________________________ ROBERT E. SULLIVAN 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).