Citation Nr: 1318664 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-16 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and R.M. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran had active duty for training (ACDTRA) on the following dates and during the following periods: February to May 1980; January 14, 1981; February 24, 1981; August 1 to August 15, 1981; August 9 to August 20, 1982; June 18 to July 2, 1983; March 24 to March 26, 1984; June 16 to June 30, 1984; June 15 to June 29, 1985; August 8 to August 25, 1985; September 23 to September 26, 1985, and; December 14 to December 16, 1985. In addition, a retirement points statement dated June 1986 indicates that the Veteran served inactive duty for training (INACDUTRA) for: 27 days from January 3, 1980 to January 2, 1981; 37 days from January 3, 1982 to January 2, 1983; 40 days from January 3, 1983 to January 2, 1984, and; 35 days from January 3, 1984 to January 2, 1985; however, the exact dates have not been determined and are not apparent from the Veteran's service personnel records associated with the claims folder. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal was forwarded to the Board from the Buffalo, New York RO. In June 2007, the Veteran and her husband provided testimony at a hearing before a Decision Review Officer at the RO. A transcript of that hearing is associated with the claims folder. This case was previously before the Board in March 2010 and December 2011 at which times the matter was remanded for further evidentiary development. As is discussed below, there has not been substantial compliance with the Board's December 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 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 contends that she has a psychiatric disability, to include PTSD, due to her service on active duty for training and inactive duty for training. Her postservice treatment records reflect a number of psychiatric diagnosis, to include PTSD, major depressive disorder, anxiety disorder with agoraphobia, and personality disorder. In regard to PTSD, the Veteran attributes this diagnosis to four stressors. They include being raped in March 1980 when she was on active duty for training while on her way to her barracks with a cast on her leg; witnessing a friend whom she identified as Mark Williams, but also as Michael Thomas, catch on fire and die; witnessing another friend, Joe Barger, getting blown up by a land mine while performing an exercise at Ft. Leonard Wood; and suffering injuries related to an explosion when she was firing an M-60 machine gun. As noted, this matter was previously before the Board in March 2010 and December 2011 at which times the case was remanded for further evidentiary development. In this regard, the Board agrees with the Veteran's representative's written argument in April 2013 that there has not been substantial compliance with the Board's December 2011 remand directives. Per the Board's December 2011 remand, the Board noted that there had been no attempt to verify the Veteran's alleged stressor of witnessing a friend, Joe Barger, being blown up during a training exercise at Ft. Wood, Missouri. Her records show that she was stationed at Ft. Leonard Wood for periods of ACDUTRA from August 1 to August 15, 1981, and from June 15 to June 29, 1985. Also, the Board noted that the Veteran's alleged stressor pertaining to an M60 round blowing up near her face was a new stressor. In this regard, her service treatment records show that she was treated in June 1984 for shrapnel wounds and flash burns on her right elbow and arm due to a defective round blowing up in the chamber when she was firing a M-60 machine gun. In light of the fact that this stressor has been verified, the Board directed in December 2011 that it be considered by a VA examiner in conjunction with the appeal. The record shows that the Veteran was afforded a VA psychiatric examination in February 2012. However, a review of the VA examination report shows that the examiner did not address the verified stressor of the M-60 machine gun exploding near the Veteran's face. Moreover, the February 2012 VA examination report contains contradictory opinions. At one point the examiner finds that it appeared that the Veteran entered service with a mental illness, but that it was not possible to vouch an opinion without speculation about her mental status getting increased due to service or to a chronic worsening of the disorder versus the natural progress of the disorder. She said this was due to her inconsistent reports of service and degree of involvement with alcohol. However, the examiner later goes on to indicate that the claimed condition clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated beyond its natural progression by an inservice injury, event, or illness. The Appeals Management Center (AMC) determined that the February 2012 report was inadequate for rating purposes. Consequently, it obtained a new VA medical opinion based on the examiner's review of the Veteran's claims file, but not on an examination of the Veteran. This examiner rendered an opinion in January 2013 apparently disagreeing with the portion of the February 2012 VA examination report finding that the Veteran clearly and unmistakably had a pre-existing mental disorder that was not aggravated by service. This examiner went on to conclude that the Veteran's "claimed condition of mental disorder" was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. This examiner based his conclusion on the lack of evidence of a mental health disorder prior to service or inservice, and lack of evidence to support the alleged stressor of being raped in service. This examiner did not discuss any other stressor, to include the M-60 blowing up near the Veteran's face. Like the February 2012 VA examination report, this report is inadequate for rating purposes. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thus, this matter must be remanded to: (1) seek verification of the Veteran's claimed stressor of witnessing a friend, Joe Barger, get killed by an explosive device and (2) afford the Veteran a new examination so as to clearly determine whether the Veteran has a PTSD diagnosis supportable solely by verified stressors as well as any other psychiatric diagnosis related to her period of active duty/inactive duty for training. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. §§ 3.159, 4.16 (2012). Lastly, the Veteran's representative points out that per a VA July 2005 social work note on file, the Veteran presented with a Polaroid photograph showing her at her barracks in 1980 with a cast on her leg (her service treatment records do not document a broken leg, only that she had a history of a right ankle fracture in 1979). Her representative asserts that this evidence lends credibility to her allegations that she was raped in March 1980 while her leg was in a cast. The representative suggests that this photograph be obtained. Accordingly, the Veteran should again be afforded the opportunity to submit any evidence in support of her claim, to include the aforementioned photograph. 38 C.F.R. § 3.159. Based on the foregoing, the case is REMANDED for the following action: 1. Provide the Veteran with the opportunity to provide VA with information or evidence not already submitted that supports her present claim, to include the Polaroid photograph referenced in the July 2005 VA social work note of her in a leg cast at her barracks in 1980. 2. Attempt to verify the Veteran's alleged stressor of witnessing a fellow soldier, Joe Barger, being blown up while practicing with a live mine at Ft. Leonard Wood during the periods of August 1 to August 15, 1981, and from June 15 to June 29, 1985. Appellant may be contacted as needed to narrow the dates if possible. 3. Arrange for the Veteran to undergo a VA PTSD /mental disorders examination by an appropriate examiner. The entire claims file must be made available to the examiner designated to examine the Veteran. The report of examination should include discussion of the Veteran's documented medical history and assertions and all clinical findings should be reported in detail. The examiner should be specifically informed of the stressor(s) that has(have) been verified, to include the M-60 machine gun exploding near the Veteran's face. The examiner should then be requested to provide an opinion as to whether the Veteran has PTSD and, if so, whether a diagnosis of PTSD is supportable solely by the stressor(s) that has(have) been verified or established in the record. The examiner should also provide an opinion, with complete rationale, as to whether it is at least as likely as not (50 percent or greater likelihood) that any acquired psychiatric disorder diagnosed, to include major depressive disorder and anxiety disorder with agoraphobia, is at least as likely as not causally related to any incident during any of the appellant's periods of active duty or active duty for training. A rationale for all opinions expressed should be provided. 4. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, readjudicate the claim for service connection for a psychiatric disability, to include PTSD. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant and her representative have 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). _________________________________________________ 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).