Citation Nr: 1321452 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 07-35 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from December 1969 to October 1971, and from June 1974 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Board reopened the Veteran's claim and remanded the matter for additional development. The Board is cognizant of the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In that decision, the Court held that, when the Veteran specifically requests service connection for a psychiatric disorder but the medical record includes other psychiatric diagnoses, the claim may not be narrowly construed. Here, the Veteran is claiming PTSD. The record also reflects a diagnosis of bipolar disorder. Under Clemons, the claim on appeal would normally be construed as involving both disorders. However, because the Veteran withdrew his appeal on the issue of bipolar disorder, and the Board dismissed the claim in its November 2011 decision, only the issue of PTSD is appropriately in appellate status in this particular case. In August 2011, a Board hearing was held before the undersigned. A transcript of that hearing is associated with the claims file. The Board notes that, in addition to the physical file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). This case had been previously remanded in November 2011. As noted in that remand, the Veteran reported that he was sexually assaulted while aboard the U.S.S. Suffolk County during the summer of 1971 (June to August) by R. H. See Transcript, p. 3. After the incident, he asked to be transferred but his request was denied. See Transcript, p. 5. He stated that he first went to the ship's Chaplain and then to the XO. Also he stated that during the summer of 1971, a live shell almost exploded aboard the ship. See Transcript, p. 7. Additionally, he testified that while aboard the U.S.S. Franklin D. Roosevelt, during the fall of 1974 (September to November), a shipmate was in the hangar deck servicing the plane when he accidently hit the ejection button, subsequently crushing and killing him. The Veteran indicated that he was tasked with cleaning up the dead shipmate's blood and body parts. See Transcript, p. 6. The Veteran stated that all these incidents would be recorded in the ship's deck logs. As he identified the ships on which these incidents took place (U.S.S. Suffolk County and U.S.S. Franklin D. Roosevelt) and the months during which the stressors occurred, the Board found that development was warranted to attempt to corroborate the claimed events. Based on the foregoing, the Board's November 2011 remand included a request for ship's log, deck log, sick bay records, and any other appropriate sources to corroborate the alleged stressor events, and a VA psychiatric evaluation only if an alleged stressor was verified. Also requested were complete inpatient clinical records of any and all Long Beach VAMC dated in 1981 to 1995 and treatment records from the VAMC in Kansas City, from July 2010 onward, and records, dated in 1987 to the early 1990s, from Broadlawn County Hospital in Des Moines, Iowa. The development was undertaken and the records requested were associated with the claims file, including VA psychiatric treatment records from Kansas City VA Medical Center and Long Beach VA Medical Center, Broadlawn Hospital, and command history reports from the USS Suffolk County for 1971 and the USS Franklin D. Roosevelt for 1974. In its response dated February 2012, however, the National Archives and Records Administration (NARA) indicated that that ship's deck log does not contain information placing individuals aboard the ship, and does not indicate names of individuals who depart the ship and might have set foot in Vietnam. Such records also would not provide other personnel related information. Rather, it was noted that deck logs document ship movements and operations. The author of the response indicated that in his over 16 years reviewing deck logs, he had never located an incident report involving sexual assault. If such a report was filed, it would probably be with the Judge Advocate General Office (JAG). The response from NARA stated that the letter was a negative reply. Elsewhere in the file, in a March 2010 deferred rating decision, the RO indicated that developmental action should be undertaken to conduct a search of the JAG office to determine if either the in-service incident of sexual assault, or the Veteran's subsequent request for a transfer, were on file. While other development was accomplished, as detailed above, the JAG office was never contacted. As such, this matter should be remanded in order to complete this development. Upon remand, the Veteran should be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. Updated VA treatment records should also be obtained. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the claims file, that have treated him since service for his claimed disability. This should specifically include updated treatment records from VA. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. Contact the Judge Advocate General Office (JAG) and request any evidence in its possession that may corroborate the alleged stressor event related to a sexual assault in service (including requests for a transfer). The Veteran should be advised of the results of this search. If the search cannot be completed without further information from the Veteran, and he is unable to provide such information, it should be so certified for the record. The RO should undertake any further development suggested by any pertinent information uncovered by the search. 3. If (and only if) an alleged stressor event in service discussed above is verified, the RO should arrange for a psychiatric evaluation to determine whether the Veteran has a PTSD diagnosis based on such stressor. In such event, the claims file must be reviewed by the examiner in conjunction with the examination. The examiner must explain the rationale for the opinion given. If a diagnosis of PTSD is not found, the examiner should specify which criteria the Veteran failed to meet. 4. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The appellant 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 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). ______________________________________________ ERIC S. LEBOFF 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).