Citation Nr: 1321404 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 10-12 232 ) 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: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from January 1962 to May 1966. This matter comes to the Board of Veterans' Appeals (Board) following an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the Veteran's claims file currently resides with the RO in St. Petersburg, Florida. In July 2012, the Veteran testified before the undersigned Acting Veterans Law Judge (VLJ) during a Travel Board hearing at the RO. A transcript of that hearing is of record. In regard to the acquired psychiatric disorder claim, the Veteran expressly filed a claim of service connection for PTSD and this issue has been developed for appellate review. VA treatment records include a diagnosis of PTSD, as well as diagnoses of depressive disorder and anxiety disorder and note symptoms of these conditions. In view of this information, it is more appropriate to characterize the claim broadly as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND With regard to the claim for PTSD, a review of post-service medical evidence, in particular, the Veteran's VA treatment records, documents diagnoses for PTSD, for depression and anxiety, for mood disorder vs. bipolar disorder, as well as for a personality disorder. Of relevance, a June 2000 VA psychology treatment note reflects the Veteran's report of not having symptoms of anxiety, chronic worries, or panic attacks, nor re-experiencing symptoms of traumatic events. Subsequently, in a January 2007 VA mental health treatment note, the Veteran reported witnessing several serious accidents associated with his military service and that he had "tucked these away well for several years except for an occasional nightmare or flashback." The Board notes that the Veteran served in the United States Marine Corps and his military occupational specialty (MOS) is noted per his DD-Form 214 as "A/C jet engine mechanic." A review of the Veteran's personnel records reflects that following his initial training, the Veteran is noted to have been assigned to VMA-225, MAG-14, 2d MAW on October 3, 1962. He is noted to have remained with this unit until April 4, 1964, when his records reflect assignment to VMA-332, MAG-14, 2d MAW. (The Board notes that the acronym VMA stands for "Marine Attack Squadron", the acronym MAG stands for "Marine Aircraft Group", and the acronym MAW stands for "Marine Air Wing.") The Veteran's claimed stressors pertain to his service onboard the U.S. Navy aircraft carrier USS Enterprise (CVN-65), as well as incidents associated with his service at Marine Corps Air Station (MCAS) Cherry Point, North Carolina. The Veteran's personnel records document that the Veteran embarked on the USS Enterprise on 21 October 1962 while the ship was out at sea, and subsequently returned from the ship to Norfolk, Virginia on December 6, 1962. With regard to his reported stressors, the Veteran has reported that the accidents that took place aboard the USS Enterprise include the deaths of two Navy sailors who were beheaded on a safety cable, and the death of a sailor who walked into a spinning aircraft propeller blade. Additionally, the Veteran recounted a sailor being killed after he was blown off the flight deck of the USS Enterprise into the water and sucked into the aircraft carrier's "screws" (or propellers). Furthermore, following the crash of an aircraft on the USS Enterprise, live ordinance from the aircraft became free and rolled down the flight deck. The Veteran also described the loss of a pilot after his plane crashed into the sea following a failed catapult launch (reported as a "dead catapult shot"). The Veteran also described the crash of an aircraft into the ship's crane which resulted in fire and debris in the forward flight deck area. Additionally, the Veteran has reported that while assigned to the MCAS Cherry Point, he witnessed the severe burning of a fellow marine, identified as "Tiny," during a hot fueling and munitions loading of an aircraft. While a number of personnel were burned, the individual identified as Tiny reportedly died from his burn injuries. During his hearing with the undersigned VLJ, the Veteran testified that a pilot that he knew had ejected into the runway from a disabled aircraft and been killed; that he had witnessed the injury of a service member who was working on the injection seat of an aircraft; and that he had witnessed the accidental shooting, and apparent death, of a service member related to an aircraft weapons system. The RO attempted verification of the Veteran's stressors associated with his service onboard the USS Enterprise through USASCRUR (United States Army and Joint Services Records Research Center-now known as the Joint Services Records Research Center or JSRRC). In a February 2008 letter to the records center, the RO identified the Veteran, his service number, the stressor incidents reported (to include a copy of the Veteran's stressor statement to VA), as well as the dates of the Veteran's service aboard the USS Enterprise (as reported by the Veteran). The time period reported was September 2, 1962 to December 30, 1962. Thereafter, the RO received a response from USASCRUR. The records center responded that "The deck logs submitted by the USS ENTERPRISE document the occurrence of various accidents aboard ship during [the Veteran's] tour of duty." The response from USASCRUR noted that sailors, in two separate incidents, had fallen overboard but that both men were later recovered. It was also noted that a fire had been extinguished in the cockpit of an aircraft. These events were reported as having occurred in the month of September 1962. The report from USASCRUR did not otherwise identify any further accidents for the months of October 1962 through December 1962, nor verify the specific accidents or deaths as reported by the Veteran. With respect to those stressors reported by the Veteran associated with his service at MCAS Cherry Point, relative records would be maintained through the Marine Corps University Archives (MCUA) or the National Archives and Records Administration (NARA). See e.g. M21-1MR, Part III.iv.4.H.29.i. The MCUA website notes that command chronologies predating 1975 would be maintained by NARA. As the Veteran's service in the Marine Corps predated 1975, the RO contacted NARA in an attempt to verify the Veteran's stressors. In a January 2010 letter, the RO provided the NARA with relevant information pertaining to the Veteran's service and requested verification of the incident concerning the fire-related injury and death of the service member identified as "Tiny". At that time, the Veteran had not identified any other stressors related to his service at MCAS Cherry Point. In a February 2010 letter, NARA notified the RO that a search of its records revealed no command chronologies for VMA-225 prior to July 1965. Otherwise, in conducting its own research of the Veteran's claimed stressors, the Board notes that a search through internet sources revealed references to VMA-225 in an aircraft (A-4 Skyhawk) association website. See http://a4skyhawk.org. The aircraft being flown by the pilots of VMA-225 at the time of the Veteran's service were A-4 Skyhawks. With regard to listed historical events associated with VMA-225 noted by the website, it was reported that on March 3, 1964, Captain Jack C. Kennedy ejected from an A-4C and was fatally injured in a hard landing while on a routine training flight. Links to newspaper articles associated with this accident document that Captain Kennedy had ejected from his disabled aircraft but had nonetheless been killed. The Board notes that during his hearing before the undersigned, the Veteran testified that possibly in the beginning of 1964 that "one of my pilots" had ejected out of an aircraft following a malfunction and been killed following a hard landing on the runway/tarmac. Furthermore, the Veteran testified that the pilot's aircraft had landed in the woods. The Board notes that Captain Kennedy's aircraft is also noted to have landed in the woods. In light of the above, the Board finds the evidence sufficient to corroborate the Veteran's report, through his testimony, of a stressor pertaining to the death of a VMA-225 pilot after being ejected from an aircraft. Here, the Veteran's reported stressor, in light of the unofficial confirmation of the event, is consistent with the circumstances and conditions of his service. See e.g., Pentecost v. Principi, 16 Vet. App. 124, 128-29 (2002); Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Otherwise, the evidence of record reflects that the Veteran has been diagnosed with PTSD but whether the diagnosis pertains to the verified incident is unknown. Therefore, the Board finds that the claim should be remanded for an examination and opinion to determine whether the Veteran meets the criteria for a DSM-IV diagnosis of PTSD based on the verified in-service stressor (or any subsequently verified in-service stressor). Also, the Veteran should be advised that he may submit "buddy statements" in an attempt to verify his stressors. See Sizemore v. Principi, 18 Vet. App. 264 (2004); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992) (citing Garlejo v. Derwinski, 2 Vet. App. 619, 620-21 (1992)) (concluding that VA breached its duty to assist the appellant by neglecting to inform him that he could ask fellow soldiers to write letters in support of his claim)). Therefore, on remand, the Veteran should be sent a notice letter informing him that he may submit "buddy statements" from those military personnel who were present at the time of the alleged stressors. Also, since the RO last considered the Veteran's claim per a March 2010 statement of the case (SOC), VA amended its regulations governing entitlement to service connection for PTSD. The new version of 38 CFR 3.304(f), effective July 13, 2010, adds a paragraph to the regulation under 3.304(f)(3), and moves 3.304(f)(3) and (4) to 3.304(f)(4) and (5)). The amendment to the regulation relaxes the evidentiary standard required for establishing an in-service stressor to support a diagnosis of PTSD. See 75 Fed. Reg. 39843- 52 (July 13, 2010). The additional paragraph added to 3.304(f) states: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and 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 posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means 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 actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected 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. 75 Fed. Reg. 39843-52 (July 13, 2010)(codified at 3.304(f)(3)). The Veteran should be apprised of the amended 38 C.F.R. § 3.304(f) and the RO should consider the amended regulation, and whether or not it applies, in readjudication of the Veteran's claim on appeal. With regard to other development, the Veteran's service treatment records have been obtained and associated with the claims file. Additionally, while the Veteran is currently receiving Social Security Administration (SSA) disability benefits, he has reported that such benefits are related to disability associated with his cervical spine and not otherwise to a psychiatric disorder. The Veteran's VA treatment records associated with the physical claims file (no records are currently associated with the Virtual VA electronic file) are dated no later than March 2010. As such, the RO should obtain the Veteran's available VA medical records dated since March 2010. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's more recent VA treatment records dated since March 2010 and associate the records with the claims file. 2. Notify the Veteran that he may submit "buddy statements" from other persons who were present at the time of the alleged stressors that occurred onboard the USS Enterprise or while the Veteran was stationed at MCAS Cherry Point. 3. After completion of the above (and allowing a reasonable amount of time for the Veteran to submit any buddy statements or for the AOJ to obtain any identified records), schedule the Veteran for psychological testing and a VA psychiatric examination. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) The AOJ should identify for the examiner those stressors which have been verified, to include any verified per the requested development above. At the time of this remand, only the death of a pilot from VMA-225, following his ejection and hard landing, has been verified. Psychological testing should be conducted with a view toward determining whether the Veteran in fact has PTSD. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. The examiner should consider the entire record, including psychological test results. In particular, the examiner should consider, as noted in the body of this remand, a June 2000 VA psychology treatment note, in which the Veteran identified not re-experiencing symptoms of traumatic events, as well as a January 2007 VA mental health treatment note, in which the Veteran reported witnessing several serious accidents associated with his military service and that he had tucked these away well for several years except for an occasional nightmare or flashback. The examiner should examine the Veteran, and identify all of the Veteran's psychiatric disorders in accordance with DSM-IV. If PTSD is diagnosed, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s) and must specifically address whether the Veteran's identified stressor or stressors (1) is/are related to a fear of hostile military or terrorist activity; (2) whether the identified stressor(s) is/are adequate to support a diagnosis of PTSD; and (3) whether the Veteran's symptoms are related to the identified stressor(s). If the examiner diagnoses an acquired psychiatric disorder other than PTSD, the examiner should opine whether it is at least as likely as not (i.e., 50 percent or greater degree of probability) that the disorder is related to the Veteran's period of active military service. A thorough explanation for any opinion offered must be provided. 4. After undertaking any other development deemed appropriate, re-adjudicate the claim on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. The SSOC must include citation and consideration of the revised 38 C.F.R. § 3.304(f) (2012) as it pertains to the relaxed evidentiary standard for establishing an in-service stressor. See 75 Fed. Reg. 39843-52 (July 13, 2010). The Veteran has 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 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). _________________________________________________ THOMAS H. O'SHAY Acting 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).