Citation Nr: 1322980 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-24 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active duty service with the United States Air Force from July 1954 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California which denied service connection, in pertinent part, for PTSD, a bipolar disorder, and a back disorder. In a December 2011 decision, the Board also denied these claims, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2012, the Court granted a December 2012 Joint Motion for Remand (Joint Motion) filed by the parties (Secretary of VA and the Veteran). The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. A review of the medical evidence indicates that the Veteran has been diagnosed with a bipolar disorder, anxiety disorder, and severe depression, among other conditions. He has been found to possess positive PTSD traits, and there is a notation in the VAMC treatment records of PTSD. There is not however a confirmed diagnosis of PTSD. Thus, the claim of service connection for PTSD is recharacterized as an acquired psychiatric disability, to include PTSD. Also in the December 2012 decision, the Board remanded claims of entitlement to benefits for head, neck, and low back disorders pursuant to 38 U.S.C.A § 1151 so that a statement of the case (SOC) could be provided to the Veteran. The record shows that the SOC was issued in January 2012, but the Veteran did not file a substantive appeal in response. Therefore, the Board does not have jurisdiction over those issues at this time. Nevertheless, the Board notes that the Veteran indicates in December 2012 correspondence that he has pending 1151 claims. While this statement does not constitute a substantive appeal, it may be construed as a new claim. Therefore, the claims to reopen the claims for benefits for head, neck, and low back disorders pursuant to 38 U.S.C.A § 1151 are referred to the RO for appropriate action. In addition, as in the December 2011 Board decision, the Board notes that the RO has not acted on the claim for entitlement to service connection for a head disorder under 38 U.S.C. § 1151. That claim is also referred back to the RO for further action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Joint Motion indicated that the Board had failed to ensure compliance with VA's duties to notify and assist. Specifically, the Joint Motion determined that additional efforts to obtain the Veteran's service treatment and personnel records should be made. In October 2004, the National Personnel Records Center (NPRC) reported that the records were destroyed in the 1973 fire at the St. Louis records repository and that an additional electronic request should be filed with Code M05, which is for requests that morning and sick reports be searched for relevant information after the Veteran has completed NA Form 13055, Request for Information Needed to Reconstruct Medical Data. In January 2006, the Veteran submitted NA Forms 13055 and 13075, as well as responded to queries by the RO for clarification of some of the supplied information. However, a search using Code M05 was not conducted. Therefore, the Board must remand the appeal so a search for records by NPRC using Code M05 may be conducted. Additionally, the Joint Motion noted that the Veteran was not provided the appropriate VCAA notice for a claim for service connection for PTSD based on personal assault. VA regulations provide that VA will not deny a PTSD claim that is based on in-service personal trauma without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing her or him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. See 38 C.F.R. § 3.304(f)(5); Patton v. West, 12 Vet. App. 272, 278 (1999). The Veteran was sent VCAA letters in July 2004 and April 2005 for his service connection claim for PTSD, and while the July 2004 letter suggested some alternative sources of evidence, it did not fully address the requirements of 38 C.F.R. § 3.304(f)(5). Therefore, the appeal must also be remanded so that the Veteran may be sent corrective VCAA notice. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Issue a letter to the Veteran notifying him of the additional evidence he may submit in support of a claim for PTSD based on personal assault as outlined in 38 C.F.R. § 3.304(f)(5) and the Court's decision in Patton. 2. Send a request to the NPRC for a search of sick and morning reports for information about the Veteran using Code M05. Requests should be continued until deemed any further efforts would be fruitless. All requests and responses, positive and negative, must be documented in the claims file. 3. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If the benefit sought remains denied, provide a supplemental SOC to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).