Citation Nr: 1327434 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-27 860A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an allergy to bleach. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1997 to December 2002, and from March 2004 to May 2005. The Veteran also had active duty for training and/or inactive duty training from March 1994 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The case was certified to the Board by the Chicago, Illinois RO. In February 2013 the Veteran's written withdrawal of his request for a Board hearing was received. The issues of entitlement to service connection for posttraumatic stress disorder, and an allergy to bleach are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran is service connected for a bipolar disorder. He asserts, however, that he is also entitled to service connection for posttraumatic stress disorder. He alleges that while on active duty he witnessed injuries, crashes, fires and fatalities while serving with a volunteer fire department from 1999 to 2000. He also reports serving as a medic while in the Army, and that he was attached to the 10th Mountain Division where he provided support for troops responding to the September 2001 terrorist attacks. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). The evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). The Veteran does not assert, however, and his service records do not show, that he participated in combat. The Board therefore finds that the Veteran did not participate in combat. Cohen v. Brown, 10 Vet. App. 128, 145 (1997). Given that the appellant did not serve in combat his bare assertions of service stressors are not sufficient to establish that they occurred. Rather, his stressors must be established by independently verifiable evidence. 38 C.F.R. § 3.304(f); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). In this case, there currently is no evidence which independently verifies the appellant's claim that he witnessed injuries, crashes, fires and fatalities while serving with a volunteer fire department from 1999 to 2000. There also is no evidence that he was attached to the 10th Mountain Division at Fort Drum, New York, or that he has posttraumatic stress disorder as a result of that assignment alone. Rather, the evidence shows that the appellant served as a cook in the Army in Kentucky, and as a seaman while in the Coast Guard. Significantly, the available record does not include either the appellant's complete personnel record or service medical records from his term of service in the Army. While efforts have been made to secure those records, further efforts are not shown to be futile. Moreover, the appellant does not appear to have been specifically advised that he should offer evidence which independently verifies his claimed in-service stressors. Therefore, further development is in order. Finally, in an April 2006 rating decision the Indianapolis, Indiana RO denied entitlement to service connection for an allergy to bleach. Later that month a timely notice of disagreement was filed. The RO has not, however, issued a statement of the case on this matter. Thus, a remand is necessary to correct this procedural deficiency before this issue can be adjudicated by the Board. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.26 , 19.29, 19.30 (2012); Manlincon v. West, 12 Vet. App. 238 (1999). On remand, the appellant will have the opportunity to file a timely substantive appeal if he wishes to complete an appeal as to this matter. Therefore, this case is REMANDED for the following action: 1. The RO should contact the appellant and request that he fully complete a PTSD questionnaire. The Veteran should be specifically requested to identify each and every claimed stressor which he believes occurred while on active duty. In so doing the appellant must identify the date and place of each stressful event. The appellant must identify the volunteer fire department with who he allegedly served, to include the dates of such service, and the address of that department. 2. Following the receipt of the appellant's completed PTSD questionnaire the RO must undertake all appropriate development to aid the claimant in independently verifying each and every claimed in-service stressor. This includes contacting any named volunteer fire department in order to verify the claimant's asserted work and duties with same. The RO must specifically document the attempts that were made to locate any records deemed unobtainable. 3. The RO must request that the appellant identify any and all treatment facilities which have treated him for posttraumatic stress disorder since May 2005. Thereafter, the RO must undertake all appropriate development. The RO must specifically document the attempts that were made to locate any records deemed unobtainable, and explain in writing why further attempts to locate or obtain any government records would be futile. Then, (a) notify the claimant of the specific records that VA is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action VA will take with respect to the claim. The Veteran must be given an opportunity to respond. 4. The RO/AMC must contact the National Personnel Records Center and the Records Management Center and request the Veteran's complete service personnel records from his Army and Army National Guard service, to specifically include the dates and geographic locations of any service between December 1997 and December 2002. The appellant's Army, Army National Guard and Coast Guard files must be reviewed for these records. Based on the Veteran's response received from the development requested above, the RO/AMC should take any necessary development action to verify the Veteran's any alleged in-service stressor. 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. 5. The RO should directly contact the Indiana National Guard, as well as Headquarters and Headquarters Company, Second Battalion, 293rd Infantry, in Logansport, Indiana, and request that they search their records for any and all personnel records which pertain to the appellant. 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. 6. Thereafter, if and only if, there is an independently verified in-service stressor; or there is any claimed stressor consistent with the places, types, and circumstances of his service; then the Veteran is to be afforded a VA medical examination by a psychiatrist to ascertain the nature and etiology of any diagnosed PTSD. The claims folder, to include access to Virtual VA, must be furnished to the examiner for use in the study of this case. The examiner's report must acknowledge her/his review of all of the evidence of record. The examiner is to conduct a comprehensive mental status evaluation. Any indicated diagnostic studies, including psychological testing and PTSD subscales, must be accomplished if deemed warranted by the examiner. All established psychiatric diagnoses are then to be fully set forth. Following the examination, the psychiatrist is to address the following with full supporting rationales: Does the Veteran have posttraumatic stress disorder that meets the diagnostic criteria in the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th Ed. 1994)? If so, is it at least as likely as not that any independently verified in-service stressor is related that diagnosis? If the examiner diagnoses posttraumatic stress disorder but finds that it is more likely than not that posttraumatic stress disorder is NOT related to service, then the examiner must carefully distinguish all pathology associated with posttraumatic stress disorder from the appellant's service connected bipolar disorder. A complete rationale must be provided for any opinion offered. 7. The Veteran is to be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). 8. After the development requested, the RO should review any examination report to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 9. Thereafter, the RO must readjudicate the issue of entitlement to service connection for PTSD. If the benefit is not granted, the appellant and his counsel must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 10. Issue a statement of the case addressing the issue of entitlement to service connection for an allergy to bleach. The appellant is hereby notified that, following the receipt of the statement of the case concerning these issues, a timely substantive appeal must be filed if appellate review by the Board is desired. If, and only if, a timely substantive appeal is filed, should this issue be returned to the Board for appellate review. 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). ____________________________________________ 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).