Citation Nr: 1322339 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-48 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In March 2011, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. 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 seeks entitlement to service connection for an acquired psychiatric disability to include PTSD and major depressive disorder due to service in the Republic of Vietnam. His personnel records note service in Vietnam from October 1967 to January 1968 with a supply company. His military occupational specialty was assistant automatic data processing console operator. The appellant contends that despite his assigned military occupational specialty he was exposed to enemy attacks, hostile fire, and that he participated in a search and destroy mission. The Veteran reports that a fellow soldier was killed right next to him in a booby trap incident, but he is unable to provide the full name of the soldier. See Mental Health Consult dated December 19, 2008. In a February 2009 Readjustment Counseling Service Assessment report the Veteran is recorded as reporting that while in Long Binh in August to September 1967 he walked into a booby trap and sustained right leg wounds. The Board notes, however, that the Veteran's service personnel records do not confirm his presence in Vietnam until October 1967 and his awards do not include the Purple Heart. The Veteran also reports that while on a convoy mission with other solders, a soldier was hit when a spray of bullets went through the door and the truck went off the road and tipped over killing the driver. The appellant has not named this soldier. Finally, he testified that in either August or September 1967 while on night guard duty with [redacted]," (phonetic spelling) they engaged in a fire fight during which time Mr. [redacted] was shot in the head and died. Again, the Veteran's service personnel records do not confirm his presence in Vietnam until October 1967. The Veteran testified in March 2011 to the truck incident as well as the incident in which his friend was shot in the head and died in his arms. The Veteran also testified that his base (Ton Son Nhut) was rocketed on his first day in Vietnam. The Veteran has submitted photographs which he asserts represent an attack while stationed at Long Binh. Finally, in light of the July 2010 liberalization of the regulations governing claims of entitlement to service connection for posttraumatic stress disorder it is notable that the Veteran has testified that a day did not go by in Vietnam when he did not fear for his life. While a November 2009 memorandum concluded that the evidence was insufficient to attempt to verify the Veteran's alleged stressors with the U.S. Army Joint Services and Records Research Center (JSRRC), the fact that the appellant has provided the specific name of a casualty, and the fact that he had only four months of verified service in Vietnam warrants further development of his claimed stressors. While VA outpatient treatment records reflect a diagnosis of PTSD an essential criterion to grant service connection for PTSD is evidence of a link between the Veteran's PTSD and a verified in-service stressor. See 38 C.F.R. § 3.304(f). Thus, after completing all necessary development in an effort to verify the claimed stressors, an examination is necessary to determine if the Veteran currently has PTSD as a result of either a corroborated stressor or as a result of any other reported stressor which is related to "fear of hostile military or terrorist activity." See e.g. Ervin v. Shinseki, 24 Vet. App. 318, 321 (2011) (holding that where the evidence includes a current diagnosis of PTSD but the claim has been denied because there was no corroboration of the asserted stressor in service, a remand is warranted). The Veteran is currently receiving disability benefits from the Social Security Administration. Any Social Security records pertaining to that award are not currently of record and should be secured. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Accordingly, the case is REMANDED for the following action: 1. The Veteran's medical and adjudication records should be requested from the Social Security Administration. All efforts to obtain these records should be fully documented, and the Social Security Administration should provide a negative response if records are not available. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The Veteran must be requested to complete a PTSD Questionnaire. A letter accompanying the PTSD Questionnaire should be sent to the Veteran and his representative requesting that the appellant provide sufficient information regarding his claimed stressors, and if necessary, authorization, to enable VA to obtain any additional evidence pertinent to the claim for service connection for PTSD. 3. Thereafter the RO should contact the U.S. Army and Joint Services Records Research Center (JSRRC), and all other appropriate sources, in an attempt to independently verify the occurrence of the Veteran's alleged stressors for which the record contains sufficient information to allow for independent verification. In particular, the RO should request information regarding the appellant's unit, the 11th Supply Company, and whether that unit came under attack at any time during the Veteran's verified term of service in Vietnam. The RO should further request information concerning the purported death due to enemy fire of [redacted]," sometime between October 1967 and January 1968. Any additional action necessary for independent verification of the Veteran's stressors, to include follow-up action requested by any contacted entity, should be accomplished. If the search for corroborating records leads to negative results, the RO should notify the Veteran and afford him the opportunity to respond. The RO should also follow up on any additional action suggested by JSRRC. 4. After associating with the claims file or Virtual VA all available records and/or responses received from each contacted entity, the RO must prepare a report detailing the occurrence of any verified in-service stressful experiences, to include under the July 2010 liberalized version of 38 C.F.R. § 3.304(f). If no stressor is corroborated, or if the appellant's report of fear cannot be reasonably associated with his service in Vietnam that fact must be reported. This document is then to be added to the Veteran's claims file. 5. Following completion of the actions delineated above, the Veteran must be afforded a VA psychiatric examination to determine the nature and etiology of any current psychiatric disability, to include PTSD. Access to the claims file, a copy of this remand, and Virtual VA must be made available to the examiner in conjunction with the examination. The examination report should reflect that such a review of all records was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner is to opine whether any corroborated in-service stressors, or any other stressor related to his claim of fear due to purported hostile action, are adequate to support a diagnosis of PTSD under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). The examiner must also identify any other psychiatric disabilities found on examination and opine whether it is at least as likely as not that any other acquired psychiatric disorder is causally related to the Veteran's period of active service or any incident therein. A complete and full rationale for any opinion offered must be provided. 6. The case should then be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case, which includes citation to the revised regulations governing claims of entitlement to service connection for posttraumatic stress disorder, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ DEREK R. BROWN 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).