Citation Nr: 1321499 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 07-00 351A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a psychiatric disorder, to include generalized anxiety disorder, depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from May 1971 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February and December of 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran appeared and testified at a hearing held at the RO before a Decision Review Officer in August 2009. A copy of the transcript of this hearing has been associated with the claims file. 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 Veteran's claim has previously been remanded by the Board in October 2010 and March 2012, unfortunately the Board finds that additional development is need at this time and, thus, remand is again warranted. After thoroughly reviewing the Veteran's claims file, the Board finds that the following military stressors: 1) Personal assaults: a. In summer of 1971, while in basic training, the Veteran was performing barracks guard duty and he was performing an about-face procedure incorrectly. His company commander noticed and asked him to repeat the procedure several times. When he continued to do it incorrectly, he kicked the Veteran in the butt/back as hard as he could in front of witnesses, which included the rest of the recruits in his company and some inspectors. The Veteran has stated that his anxiety problems started after this incident. He also stated that, after this incident, his company commander singled him out for extra/punitive duty and that he began to fear that his company commander wanted to kill him and he was having problems sleeping and would sleep in a chair. b. Around February 1973, on a Friday, he was sent to work in the midship engine room on the USS Little Rock. He was told to go forward to a duty assignment. When he went into the compartment, all of a sudden the lights went out. He was hoisted/picked up. He fought them, kicking, punching and screaming, but lost consciousness (has also stated he went in and out of consciousness). When he awoke, he was in a different part of the ship. His pants and underwear were down and he had motor oil/grease packed in his butt (also reported to have had stiff grease from his butt to his penis). He has referred to this incident alternatively as "gang rape" and as a "hazing" incident. (It is noted that the Veteran's initial report of military sexual trauma set forth in a September 9, 2004 Individual Therapy Note was that he was abused several times by about "15 guys" who would hold him down and stick things into his rectum. Subsequently, however, the Veteran has consistently only reported the single event and that he did not know how many men there were as the lights were off. It is also noted that it is unclear whether the Veteran tried to report this incident as he has inconsistently stated that he did not report it because he was too ashamed and embarrassed versus that he tried to speak with either another guy in engineering or his Division Officer about the incident and was told to forget it.) In addition, he has stated that this event negatively affected his state of mind, job performance, hygiene and resulted in him asking for a ship transfer. In support of his claim Veteran submitted two statements from his buddy, Y.L.L., dated in April 2010 and January 2012, in which Y.L.L. states that he was a shipmate onboard the USS Little Rock when the Veteran came aboard in 1971 until he left in 1973 and that, during that time, he observed departmental initiations of various divisions aboard the ship. He further stated that hazing was customary as part of the initiation process. c. Harassment: The Veteran has made several statements about racial harassment while onboard the USS Little Rock. At times, he has reported that he was treated poorly by the black men onboard because he did not socialize with them and by the white men because he was black. He has also reported that, after the assault just noted above, the white men in his unit would make threats against him such as "We are going to gang you and smother you in your sleep;" "We are going to push you over the side;" "we will stab you in your sleep;" and "one way or the other, we are getting rid of you." Said he told his Division Officer about these threats, but that he was not believed. According to the Veteran, he had purchased .45 caliber ammunition and intended to purchase a gun, but had yet to do so, when the ammunition was found in his locker on a surprise inspection. He has stated that he underwent two Captains Masts because of this offense. 2) Storm at sea - The Veteran reported that he has nightmares about being below deck on ship, taking on water and explosions (see April 22, 2004 mental health consultation note); having dreams that he is in the Navy onboard ship in a storm with water coming in (see December 2, 2004 Individual Therapy Note); having dreams about the time his ship in the Navy was taking on water faster than it could be pumped out and the ship was sinking (see February 10, 2005 Individual Therapy Note); during heavy seas, the USS Little Rock would have its bow underwater and be taking on water and he would fear for his life (see April 2012 VA examination report). To corroborate this stressor, the Veteran submitted a buddy statement from Y.L.L. in which he stated he was at the helm of the USS Little Rock during the time of the incident of the violent storm with 55 to 60 foot high waves. They were in this storm for four to five days. The severity of the storm cracked the main beam forward, which caused the ship to start to take on water. Because of the submersible pumps being clogged with rages in the paint ship, the ship at one point was sinking. They called the Coast Guard for assistance, but were told they could not help because the USS Little Rock was larger than anything they had; however, they did send out a plane daily to check on the USS Little Rock. Y.L.L. stated that, because of the ship's damage, it had to go into dry dock at Boston Yards for about six months. He further stated that, at that time, the ship was not the flagship for the sixth fleet but was part of a much larger task force. 3) Incidents with Russian planes and/or ships and call to General Quarters (GQ). a. While on USS Little Rock, there was a confrontation with a Russian destroyer that almost rammed them and GQ was called. (See VA treatment notes from July 2003, April 2004, September 2005; and April 2012 VA examination report; March 2004 Veteran's statement) b. While on USS Little Rock the Russians launched a Badger flying low, coming toward them. Because the plane did not respond to their radio call to identify itself, GQ was called. The USS Kennedy launched two F14 fighters and chased the Russian Badger away. (See March 2004 stressor statement; November 2006 and May 2012 PTSD Questionnaires; VA treatment note from September 2005; and April 2012 VA examination report.) The Board notes that the record also shows the Veteran had the following non-military stressors: 1) When Veteran was in sixth grade (around age 11 or 12), he was awakened by gunshots and saw the fire from the shots in his dark bedroom. Essentially his report has been that his mother's boyfriend shot and killed his aunt, whose body he found, and shot and wounded his mother in the butt (although he did not immediately find her as she had run from the house and her boyfriend chased her). (See VA treatment notes from September 2004, November 2004, February 2005, April 2006, June 2006; April 2012 VA examination report.) 2) In September 2004, after Hurricane Ivan, the Veteran had gone to a neighbors to borrow a ladder when he walked into the house and two men stepped out with shotguns and one of them placed the gun to the Veteran's head. He thought he was going to die. The Veteran and all the others in the house were robbed. One of the robbers fired his gun at one of the men and also fired other shots as they were leaving. (See VA treatment records from October 2004, October 2005; April 2012 VA examination report.) 3) The Veteran reported in a November 2004 Individual Therapy Note that, when he left the last session, he walked into a medical emergency at the front door of the building and helped remove a man who was dying from a van. 4) The Veteran reported in an October 2005 Individual Therapy Note that he did not feel safe on his front porch since a woman come over and pointed a gun at him. At the April 2012 VA examination, he reported that, he was sitting on his porch one day, and an elderly woman came up and told him to go insides, which he refused. She then produced a pistol and told him that she wanted sex. He reported that he felt extreme fear and told the woman he was waiting for someone to drop by and she left. Initially the Board notes that the Veteran has reported numerous things that may appear in his personnel record, such as the request for a transfer after the alleged MST and also punitive actions taken against him. The Veteran's full personnel record, however, has not been obtained and associated with his claims file. Consequently, on remand, this should be accomplished. In addition, the Board notes that the Veteran has claimed that the deck logs of the USS Little Rock should support his noncombat, non-MST stressors. The Board agrees; however, the Veteran has not provided a sufficient two-month time frame in order for a search of the deck logs may be accomplished. The Veteran reported that the confrontations with the Russian planes and/or ships happened when the USS Little Rock was in the Mediterranean Sea in 1973. It also appears from his statements and his buddy's May 2012 statement that the storm the Veteran complains of occurred while the USS Little Rock was in the Atlantic Ocean rather than the Mediterranean Sea. The Board notes that it found an informal daily history for the USS Little Rock online at http://www.usslittlerock. org/Chronology_1966-73.html. This history shows that the USS Little Rock was underway to the Caribbean from September 26th to October 1st in 1971 (shortly after the Veteran came aboard, which was on September 1st) when it was affected by Hurricane Ginger and had to maneuver 14 to 16 foot seas in spite of traveling to avoid the hurricane. In addition, it shows that the USS Little Rock was underway from Rota, Spain to Norfolk, VA from April 16th to the 22nd in 1972 when it experienced heavy weather at sea. Furthermore, this history shows the USS Little Rock was in the Mediterranean Sea twice while the Veteran was onboard. The first time was from December 1971 to April 1972. The second time was in August 1973 at which time when they reached Gaeta, Italy, the Veteran was transferred to the USS Springfield and returned stateside. This timeline may assist in helping the Veteran pinpoint the timeframes of when his claimed stressors occurred. Thus, on remand, he should be contacted and asked to provide a two-month timeframe of when each non-combat, non-personal assault stressor occurred so that additional development can be conducted to attempt to independently verify these stressors. Finally, the Board finds that re-examination of the Veteran is warranted. The Veteran was examined in February 2011, April 2012 and March 2013. Initially, the Board notes that, at the February 2011 VA examination, the Veteran only reported his claimed MST as the only military stressor. In the Board's October 2010 remand, it was instructed that the Veteran be provided with a VA examination and asked that the VA examiner identify all records, based upon a review of the claims file, that indicate a change in the Veteran's behavior subsequent to the alleged assault, and to describe the clinical significance of such changes, and then opine as to whether it was as likely as not that the in-service stressful event(s) described by the Veteran occurred. If so, the examiner was to determine whether the Veteran has PTSD as a result of these stressful events. If PTSD was diagnosed, then the examiner was to comment upon the link between the current symptoms and the Veteran's verified stressor(s). The VA examiner was also to determine the nature and etiology of any generalized anxiety disorder experienced by the Veteran. In its March 2012 remand, the Board found that the February 2011 exam provided in response to the above remand instruction was not adequate finding that the examination report was not carefully written and based upon a complete review of the claims file. The Board further observed that no statement was made as to the link between the PTSD diagnosis and the stressors, as was specifically requested in the October 2010 remand instruction. It indicated that this was particularly significant in light of a history of stressors outside of service such as a history of seeing his aunt and mother get shot when he was a child (see VA treatment record dated June 24, 2004). Furthermore, the examiner made no mention at all of the vet's generalized anxiety disorder, or its likelihood as being due to active service. Consequently, the Board found that the February 2011 VA examination report was largely noncompliant with its remand directives and was inadequate for rating purposes. The Board, therefore, requested that a new examination be provided the Veteran. This examination was provided in April 2012. The Veteran was sent for another examination in March 2013 in order to allow the VA examiner to provide an opinion as to generalized anxiety disorder. The Board notes that the March 2013 VA examiner was the same psychiatrist who conducted the April 2012 VA examination. Although it appears the examiner complied with the Board's remand instructions, the Board finds that the medical opinions provided by the examiner are inadequate as he failed to note and take into consideration positive lay and medical evidence relating to the Veteran's claim. Although the examiner noted the February 2011 VA examiner's positive opinion that the MST alleged by the Veteran occurred, it does not appear that he considered the opinion of the Veteran's VA treating psychiatrist stated in a April 25, 2012 that the Veteran's PTSD symptoms started and appear to be caused by the traumatic gang-rape by other sailors he suffered in the Navy and the threats they made against him to kill him. The Board acknowledges that the note was not available at the time of the April 2011 examination as it was conducted prior to the date of the treatment note. However, the examiner did not mention it at all in his March 2013 report. Furthermore, the examiner failed in either report to mention the favorable lay statements submitted by the Veteran's buddy, Y.L.L., in April 2010 and January 2012 that corroborate that departmental initiations, which included hazing, were conducted aboard the USS Little Rock, despite the Veteran having made several statements that the MST incident was a hazing event. He also failed to discuss Y.L.L.'s May 2012 statement about the USS Little Rock being involved in a violent storm for four to five days while at sea and that it was damaged and taking on water, which corroborates the Veteran's statements. Finally, the VA examiner failed to address the statement submitted by the Veteran's mother in April 2010 about the change in the Veteran's behavior after he returned from service, and the statement submitted by his friend, W.L., in November 2010 about the Veteran's behavior that he witnessed since 1976, especially with regard to whether this evidence constitutes sufficient evidence of a behavior change to support the occurrence of MST as reported by the Veteran. Consequently, the Board finds that a new VA examination is needed for all the evidence to be considered, especially if any non-MST stressors claimed by the Veteran are independently verified after further development. The Board notes that the March 2013 VA examination report indicates that the Veteran walked out of the examination. The examiner noted in his report that it became very clear after only a few minutes that the Veteran was not pleased that this examiner was to perform his examination and terminated the interview after about four minutes. Consequently, the Board initially finds that the new examination should be conducted by a different examiner. Furthermore, the Veteran is hereby advised that it is incumbent upon him to submit to a VA examination if he is applying for VA compensation benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). The Board further advises him that he must cooperate with the VA examiner and the examination process. It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). If he fails to report for a scheduled examination, without good cause, or to cooperate with the examination process to such that it can be deemed that no examination has been conducted, his claim will be decided based on the evidence of record, which may be insufficient to render a favorable decision. 38 C.F.R. § 3.655(a) and (b). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and advise him that, in order to verify his stressors relating to the USS Little Rock, he must provide a two-month timeframe of when these incidents occurred. He specifically should provide this information for the following claimed stressors: (1) when the USS Little Rock went through heavy seas and took on water such that he feared he was going to die; and (2) when general quarters was called because Russian planes and/or ships came too close (especially the time he has stated he broke general quarters and went to the top deck). The Veteran should be advised that, without these specific time frames that these events occurred, it may not be possible to obtain deck logs or other records that would verify that such events occurred. 2. Contact the National Personnel Records Center (NPRC), or any other appropriate agency, and request the it provide the Veteran's complete service personnel records for the period of his active duty. Associate all requests and records received with the claims file. If records are unavailable from any sources, a negative reply is requested. 3. Once any additional information is obtained from the Veteran in relation to the above request, efforts should be undertaken to verify the Veteran's stressors using the available information (whether provided by the Veteran or obtained otherwise) to include obtaining deck logs, records of Captains Masts, or other military records that may verify the claimed events listed above in the body of this remand and/or contact that U.S. Army and Joint Services Records Research Center (JSRRC) or other appropriate agency to request stressor verification. 4. After the above development is completed to the extent possible, the Veteran should be scheduled for a new VA Initial PTSD examination, by a different psychiatrist than the one that performed the last two VA examinations in April 2012 and March 2013. The entire claims folder, to include a complete copy of this REMAND, must be made available to the examiner, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies (to include psychological testing) should be accomplished (with all findings made available to the psychiatrist prior to the completion of his/her report), and all clinical findings should be reported in detail. After reviewing the claims file and interviewing the Veteran, the examiner should render a diagnosis of all current psychiatric disorders to include, but not limited to, generalized anxiety disorder, depression and PTSD. If the examiner finds that the only current anxiety disorder present is PTSD (i.e., that generalized anxiety disorder is not present), then the examiner should provide an opinion as to the onset of the Veteran's PTSD (given that the VA treatment records initially show a diagnosis of generalized anxiety disorder and do not show the presence of PTSD symptoms until after September 2004). The examiner should be advised of all stressors the Veteran has related (whether to his treating physicians or in statements to the RO) to include all pre-military, military, and post-military stressful events. For all military stressors, the examiner should be advised whether the stressor has been independently verified. As to the Veteran's claims for personal assault (this includes the assault in basic training as well as the MST reported incurred on the USS Little Rock), the examiner should identify all evidence (whether military, medical or lay) indicating any change in behavior or performance subsequent to the alleged in-service assaults and offer an opinion as to the clinical significance, if any, of such evidenced changes. The examiner should also address stressors which occurred prior to and after service, which are listed above in the body of this remand. The examiner should then express an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater probability) that the in-service personal assault occurred. The basis for this opinion should be reported. If the examiner determines that the claimed in-service personal assault(s) occurred, then he or she should render an opinion as to whether it is at least as likely as not that any currently diagnosed psychiatric disorder, especially PTSD, is the a result of the particular reported stressor(s). As to the reported stressors that are not related to the reported personal assaults and have been independently verified, the examiner should provide an opinion as to whether it is at least as likely as not that any currently diagnosed psychiatric disorder, especially PTSD, is the result of any or all of the verified stressors. If the examiner confirms the diagnosis of generalized anxiety disorder, as previously requested, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that generalized anxiety disorder is related to the Veteran's active duty service, specifically whether it is related to any of . The examiner should give a detailed explanation for the reasons for the opinion(s) provided. In rendering the requested opinions, the examiner should take into consideration and discuss any evidence, whether medical or lay, favorable to the Veteran's claim. The medical reasons for accepting or rejecting the Veteran's theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 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 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. _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board 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).