Citation Nr: 1322920 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-06 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The appellant served on active duty from May 1979 to August 1979. He had additional service with the U.S. Marine Corps Reserves, to include a period of active duty for training (ACDUTRA) from July 11, 1981 to July 26, 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In this regard, the record reflects that the appellant has been diagnosed with PTSD and depressive disorder not otherwise specified (NOS). In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The appellant seeks to establish his entitlement to service connection for PTSD due to a stressor which occurred during a period of "ATD" in July 1981. He reports serving as a personal aide to Lt. Colonel [redacted], who was killed in a helicopter crash while attempting to land on the USS Guam on July [redacted], 1981. The appellant did not witness the helicopter crash, but reports that his PTSD stems from having to retrieve Colonel [redacted] body, and viewing the bodies of others killed in the crash. The appellant has provided private medical opinions diagnosing him with PTSD as a result of the events in July 1981. The RO has held that the appellant's reported PTSD stressor did not occur during "active duty," and does not constitute an "injury" for purposes of ACDUTRA or inactive duty for training (INACDUTRA) service. In general, service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury or disease, contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection for PTSD specifically requires: (1) a current medical diagnosis of PTSD, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) medical evidence establishing a nexus between the claimed in-service stressor and the current symptomatology of PTSD. See 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Pentecost v. Principi, 16 Vet. App. 124, 129 (2002). With regard to the second PTSD element discussed above, i.e., an in-service stressor, the appellant describes a non-combat related stressor. In this situation, the appellant's testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. See Zarycki v. Brown, 6 Vet. App. 91 (1993). See also Cohen, 10 Vet. App. at 138; Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). "Veteran" status is the first element required for a claim for disability benefits. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). The term "active duty" includes full-time duty in the Armed Forces, other than ACDUTRA. 38 U.S.C.A. § 101(21). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C.A. § 101(10). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id. VA's General Counsel has concluded that the term "injury" denotes harm from external trauma rather than a degenerative process, and that the term "trauma" commonly refers to the application of external force or violence. VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 08-2001 (February 26, 2001); VAOPGCPREC 86-90 (July 18, 1990). In the context of a psychiatric disability such as PTSD, VA's General Counsel has concluded that a claimant with PTSD resulting from a sexual assault during a period of INACDUTRA may be considered disabled by an "injury" for purposes of section 101(2) and 101(24). VAOPGCPREC 08-2001 (February 26, 2001). In this opinion, it was noted that, according to the DSM-IV [American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition], a diagnosis of PTSD requires experiencing a traumatic event. It was also stated that the DSM IV made clear that the reaction to an event causes the symptoms of PTSD and that there is no indication of a latent disease process that becomes manifest as a result of the traumatic experience. It was finally noted that sexual assault is a traumatic physical event that may cause both physical and psychological harm, although the effects of the psychological harm may be latent. Similar to sexual assault claim discussed in VAOPGCPREC 08-2001, the appellant claims to manifest PTSD as a result of experiencing a traumatic event. Unlike the situation in VAOPGCPREC 08-2001, the trauma in this case is based solely on a psychological harm absent an actual physical insult to the body. The Board is of the opinion that witnessing a traumatic event which results in PTSD may be properly considered a psychological injury which comes within the meaning of "injury" for purposes of 38 U.S.C.A. § 101(2) and (24). That is, the appellant was exposed to an external, traumatic event that is alleged to be responsible for his PTSD symptoms. An interpretation that a psychological injury alone, absent any physical harm, constitutes an "injury" for purposes of ACDUTRA service is consistent with the VA General Counsel opinions cited above. Here, the case reflects a theory of the incurrence of PTSD, which VA's General Counsel has excluded as a latent disease process, caused by an external psychological or physical trauma during ACDUTRA service. In view of the above, the Board finds that the appellant's claimed PTSD stressor during a period of ACDUTRA may support an award of compensation under 38 U.S.C.A. § 101(2) and (24). With respect to the claimed stressor, the record contains a newspaper article corroborating that Lt. Colonel [redacted], was a Marine Corp Reservist based at the Marine Corps Air Station (MCAS) New River. He died on July [redacted], 1981 while attempting to land a helicopter bound from the Naval Air Station at Horsham on the flight deck of the USS Guam. The appellant's service personnel records (SPRs) reflect a military occupational specialty (MOS) as an "ADMINMAN" with the U.S. Marine Corps Reserves. There is a copy of "ATD" orders at MCAS New River from July 11, 1981 to July 26, 1981, which is a two-week period starting on a Saturday and ending on a Sunday. It is the opinion of the Board that the Veteran's "ATD" orders from July 11, 1981 to July 26, 1981 reflect a two-week period of ACDUTRA service. The newspaper article and SPRs corroborate that the appellant and Lt. Colonel [redacted], were in the same reserve unit, the newspaper article corroborates the death of Lt. Colonel [redacted], during the period of ACDUTRA from July 11, 1981 to July 26, 1981, and the appellant's allegation of serving as a personal aide for Lt. Colonel [redacted], is consistent with his MOS as an administrative person within Lt. Colonel [redacted] unit. The documentary evidence does not confirm that the appellant actually served as a personal aide to Lt. Colonel [redacted] or that the appellant retrieved the body of Lt. Colonel [redacted] after his death. However, such details would not be expected to be contained within the SPRs. The documentary evidence does reflect that the appellant's MOS was consistent with being a personal aide, and that the appellant was on ACDUTRA with Lt. Colonel [redacted] at the time of the helicopter accident. In the absence of any evidence impeaching the credibility of the appellant's testimony, the appellant's current testimony is sufficient to fill in any missing details in the SPRs. See Pentecost, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997) (discussing that a claimant need not substantiate actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he/she was, in fact, exposed to the stressor event). Thus, the Board finds that there sufficient evidence to substantiate a potential ACDUTRA PTSD stressor. With respect to the PTSD diagnosis, private medical examination reports dated January 2008, October 2011 and February 2013 do not reflect a clear picture of the appellant's participation in retrieving the body of Lt. Colonel [redacted] and, while co-signed by a Ph.D., it appears that the evaluations were conducted by a psychiatric associate with a MA. Moreover, such do not offer a nexus opinion regarding the Veteran's depressive disorder NOS. Thus, the Board finds that medical examination is necessary to decide this claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination conducted by a psychologist or psychiatrist to determine the nature and etiology of his currently manifested psychiatric disorders. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. (A) The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether the July 1981 stressor reported by the appellant was sufficient to produce PTSD; and (2) whether it is at least as likely as not that there is a link between the current symptomatology and the July 1981 stressor reported by the appellant, and documented partially in a newspaper article associated with the claims folder, and found sufficient to produce PTSD by the examiner. If the examiner does not diagnose PTSD, he or she should reconcile such finding the remainder of the evidence of record, to include the private psychiatric evaluations. (B) If a psychiatric disorder other than PTSD is diagnosed, to include depressive disorder NOS, the examiner should indicate whether it is at least as likely as not related to the events in July 1981 as reported by the appellant. The examiner should provide a complete rationale for the opinions. In rendering an opinion, the examiner is particularly requested to conduct a detailed interview regarding the appellant's participation in the events after the death of Lt. Col. [redacted] and to provide an explanation regarding the sufficiency of this stressor to support a PTSD diagnosis. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant 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 (West Supp. 2012). _________________________________________________ A. JAEGER 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).