Citation Nr: 1320367 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-19 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1969 to July 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). The claim of service connection for a psychiatric disability was developed and adjudicated as limited to the diagnosis of PTSD. Because the record shows a psychiatric diagnosis other than PTSD (chronic major depression), and in light of the intervening United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), it has been recharacterized as stated on the preceding page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND On close review of the record, the Board finds that inadequate efforts have been undertaken to properly research the Veteran's alleged stressor event and that further development in this matter is needed. Specifically, the Veteran contends in or about September 1970, while assigned to the 188th Military Police (MP) Company (Co.), 720th MP Battalion, he was tasked to investigate an incident involving a gunship explosion which required that he cross the Mekong River. During this crossing, the boat in which he was riding flipped over and he almost drowned. The Veteran asserts this event was documented by his Desk Sergeant and recorded in the military police daily blotter. The RO attempted to verify this stressor by contacting the Center for Unit Records and Research (CURR) (now known as U.S. Army and Joint Services Records Research Center (JSRRC). CURR reported that they reviewed the unit history submitted by the 720th Military Police Battalion (720th MP Bn.), which included the period of 1970 and confirmed that Company B (Co. B) provided the only MP support for the entire Mekong Delta, and that there was no documented incident in which a boat overturned while crossing the Mekong River. It does not appear that the Veteran was notified of this response (or was given opportunity to respond or supplement the record). The Board also notes it has not been determined whether a daily [MP] blotter was maintained by the 720th MP Bn., and if so, whether it (or copies) remains in existence. As the Veteran asserts that such blotter contains corroboration of his alleged stressor event, exhaustive development to confirm its existence, and if so, to secure pertinent copies, is necessary. Additionally, the Veteran's service personnel records may contain pertinent information, and should be obtained. Furthermore, during the pendency of this claim, VA amended the regulations governing processing of claims of service connection for PTSD by liberalizing, in certain circumstances, the evidentiary requirement for establishing the occurrence of a stressor event in service. See revised 38 C.F.R. § 3.304(f)(3). Under the revision, if a Veteran's claimed stressor relates to fear of hostile military or terrorist activity, lay testimony may establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary, if (1) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the symptoms are related to the claimed stressor; and (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 75 Fed. Reg. 39843 (July 13, 2010) [codified at 38 C.F.R. § 3.304(f)(3) (2011)]. The regulation defines "fear of hostile military or terrorist activity" to mean that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actually or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery; rocket, or mortar fire; grenade; small arms fire, including sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 U.S.C.A. § 3 .304(f)(3). These amended provisions apply to the Veteran's claim, specifically as he claims his PTSD is attributable to witnessing a Vietnamese solider blown up by a grenade (a stressor event incapable of verification). Furthermore, in Clemons, 23 Vet. App. 1, the Court held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record, i.e., that matter(s) of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of service connection for a psychiatric disability claim (and that such matter(s) is/are before the Board). Postservice treatment records show an Axis I diagnosis of chronic major depression. As the RO has not developed or adjudicated the matter of service connection for psychiatric disability other than PTSD, this must be done on remand for compliance with Clemons. Finally, the record indicates that the Veteran continues to see Edwin Hoeper, M.D. for his psychiatric disabilities. The most recent record of such treatment associated with the record is dated in February 2009. As updated mental health treatment records may contain pertinent information, they must be obtained. Accordingly, the case is REMANDED for the following: 1. The RO must arrange for exhaustive development to determine whether a daily MP "blotter" for the 720th MP Bn. (as identified by the Veteran) is in existence, and if so, to secure for the record copies of any relevant entries. If exhaustive development proves fruitless, the scope of the development should be described in the record in detail. The Veteran's service personnel records should be obtained for the record. 2. The RO should ask the Veteran to provide the authorizations necessary for VA to obtain all outstanding records of private treatment he has received from Dr. Edwin Hoeper. The RO should secure for the record copies of the complete updated clinical records of the Veteran's evaluations/treatment from that provider. If a private provider does not respond to the RO's request for records identified, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 3. The RO should thereafter arrange for the Veteran to be examined by an appropriate VA psychologist or psychiatrist to determine the nature and likely etiology of his psychiatric disability. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. The examination must be in accordance with DSM-IV. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: a. Please identify (by medical diagnosis) each of the Veteran's psychiatric disabilities found, and specifically indicate whether he has a diagnosis of PTSD based on a corroborated stressor event or under the revised 38 C.F.R. § 3.304(f)(3) criteria. If PTSD is not diagnosed, please explain why the criteria for such diagnosis are not met. b. As to each psychiatric disability entity other than PTSD diagnosed, please indicate whether such is at least as likely as not (a 50% or greater probability) related to the Veteran's active service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data as appropriate. 4. The RO should then review the record and readjudicate the claim, to encompass all psychiatric diagnoses (in accordance with Clemons), as well as consideration of the revised 38 C.F.R. § 3.304(f)(3). If it remains denied, the RO should issue an appropriate SSOC, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran 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 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). _________________________________________________ George R. Senyk 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).