Citation Nr: 1318480 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 08-31 350 ) 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: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was afforded a Board hearing, held at the RO in St. Petersburg, Florida, by the undersigned Veterans Law Judge, in January 2010. A copy of the hearing transcript has been associated with the record. The Board, in a March 2012 decision, denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 Order, the Court granted an August 2012 Joint Motion for Remand (JMR) and vacated the Board's decision. This matter was remanded to the Board for readjudication in accordance with the JMR. 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 Although the Board regrets any further delay in adjudicating the Veteran's claim for service connection for an acquired psychiatric disorder, pursuant to the duty to assist, this issue must be remanded for further development. In an April 2010 remand, the Board noted that the Veteran's service personnel records (SPRs) were missing from the claims file, and there was no evidence in the record to show that the RO had submitted a request for information to the appropriate service department custodian of records in order to attempt to verify the Veteran's claimed service in the Republic of Vietnam. The Board directed the RO/AMC to contact the appropriate custodian of service department records for verification of the Veteran's claimed period of Vietnam service, and, if available, obtain and associate with the record the Veteran's SPRs. The Board further directed the RO/AMC that if the Veteran's claimed service in Vietnam was verified through official sources, they should conduct all appropriate development to verify the claimed stressors in this case and then make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor or stressors in service. The Board directed the RO/AMC that if they determined that the record verified the existence of a stressor or stressors, they must specify what stressor or stressors in service it determined were established by the record and obtain a supplemental VA opinion from the August 2008 VA examiner to determine the nature and etiology of any currently-diagnosed psychiatric disorder(s). The AMC sought the Veteran's SPRs from the National Personnel Records Center (NPRC) and such were associated with the claims file in December 2010. Review the Veteran's SPRs were silent for verification that the Veteran served in Vietnam and earned two Purple Hearts. The AMC, in January 2011, thus issued a Formal Finding as to the lack of information required to corroborate stressors associated with a claim of entitlement to service connection for PTSD. The AMC determined that the information required to corroborate the stressful events incurred by the Veteran was insufficient to send to the United States Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of the Marines Research Center and/or National Archives and Records Administration (NARA). The AMC determined that they had properly followed all procedures to obtain this information from the Veteran and evidence of written efforts to obtain this information was in the file. They determined that all efforts to obtain the needed information had been exhausted and further attempts would be futile. In the Formal Finding, the AMC detailed their efforts, citing the receipt of the Veteran's SPRs in December 2010. They reported that review of the Veteran's SPRs were silent for receipt of any medals or decorations associated with combat service, and his SPRs indicated that the Veteran served for a period of ten months and six days, from July 18, 1967, to May 23, 1968, without indication of any service in Vietnam. The AMC scheduled the Veteran for a VA examination in March 2011 and obtained a supplemental opinion to such in August 2011. The AMC then issued a Supplemental Statement of the Case (SSOC) in October 2011. As discussed above, the Board, in March 2012, denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed the Board's decision to the Court. In an August 2012 Order, the Court granted an August 2012 JMR and vacated the Board's decision. This matter was remanded to the Board for readjudication in accordance with the JMR. Specifically, the JMR provided recitation of the AMC's efforts to secure the Veteran's SPRs and provided recitation of part of the Formal Finding. The parties to the JMR agreed that it was unclear from the record how the AMC determined that all procedures to obtain the information from the Veteran were "properly followed" and what evidence the AMC relied upon to determine that "written efforts to obtain this information" exist in the file. The parties agreed that a remand was warranted because it appeared that inadequate steps were taken to confirm the Veteran's service in Vietnam, and that while the AMC and NPRC corresponded, it was not clear from the record that the correct information was sought or received. In essence, only obtaining the Veteran's SPRs and finding them silent for any record of service in Vietnam or receipt of any medals or decorations associated with combat service does not substantially comply with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). It appears that the AMC, when it determined that all procedures to obtain the information from the Veteran were "properly followed," and when describing the "written efforts to obtain this information" was referring to its correspondence with NPRC as to requests, eventually fulfilled, for the Veteran's SPRs. On remand, to comply with the JMR, the AMC must consider that the Board, in the prior remand, directed it to contact the appropriate custodian of service department records for verification of the Veteran's claimed period of Vietnam service, separate and apart from its directive that the AMC obtain and associate with the record the Veteran's SPRs. There is no evidence that the AMC contacted any other custodian, including a repository that might maintain the Veteran's unit history, or the custodian of records of the United States Marine Corps. 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. Contact the appropriate custodian of service department records for verification of the Veteran's claimed period of Vietnam service. Consider a search for the Veteran's unit history, or a request directly to the archives of the United States Marine Corps. If no such records are available or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. See 38 C.F.R. § 3.159(c)(2), (c)(3) and (e) (2012). 2. If, and only if, the Veteran's claimed service in Vietnam is verified through official sources, then conduct all appropriate development to verify the claimed stressors in this case. Then make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor or stressors in service. If it is determined that the record verifies the existence of a stressor or stressors, then specify what stressor or stressors in service it has determined are established by the record. If the Veteran's claimed service in Vietnam is not verified, no additional AMC determination as to stressors is required. 3. If, and only if, the AMC finds that the Veteran's claimed service in Vietnam is verified through official sources and the stressors verified by the record are determined, obtain a supplemental VA opinion from the VA examiner who conducted the March 2011 VA examination and who provided the August 2011 opinion to determine the nature and etiology of any currently-diagnosed psychiatric disorder(s). If that examiner is unavailable, the Veteran should be afforded another VA psychiatric examination and that examiner is requested to respond to this inquiry. After a review of the claims folder, the examiner should address the following: a. The examiner should discuss the nature and extent of any present psychiatric disorder, and provide an opinion addressing these questions: (I) Whether there is there is clear and unmistakable evidence (i.e., obvious and manifest) that the Veteran had a psychiatric disorder prior to service and, (ii) If he did have a pre-service psychiatric disorder, whether such was aggravated, i.e., made permanently worse, during his military service beyond its natural progression, or (iii) If his only pre-service pathology was a personality disorder, whether there was additional superimposed psychiatric pathology as a result of service. b. If there was no pre-service psychiatric disorder, provide an opinion addressing whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that any currently diagnosed psychiatric disorder is related to any incidents, symptoms, or treatment the Veteran experienced or manifested during service, or is in any other way causally related to his active service, or whether such a causal relationship to service is unlikely (i.e., a probability of less than 50 percent). Any opinion provided should include discussion of specific evidence of record, including prior medical opinions and diagnoses of record including PTSD, and, if PTSD is not diagnosed, note which criteria were not met. The examiner must discuss the rationale of all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to mere speculation, as merely stating this will not suffice. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If the Veteran's claimed service in Vietnam is not verified, no additional VA examination or opinion is required. 4. Review the claims file to ensure that it is in complete compliance with the directives of this remand, specifically, that verification of the Veteran's claimed service in Vietnam was sought and all actions related to such are documented in the record. If any deficiency is found, corrective procedures must be implemented. 5. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a SSOC and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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). The purpose of the examination that may be requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending any requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ S. L. Kennedy 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).