Citation Nr: 1327627 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 03-20 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1983 to December 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in November 2005 and in August 2009, when it was remanded for additional development of the record and/or to ensure due process. 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 At the outset, the Board notes that this appeal has been pending many years, and that the case was twice previously remanded by the Board for additional development. While the further delay flowing from yet another remand is certainly regrettable, the Board observes that in no small part the delay stems from the Veteran's prior incomplete reports and the inconsistent histories provided in his statements and compiled by various treatment providers, as well as his failures to respond to the RO's requests for identifying information necessary to complete the development sought. The Veteran did not serve in combat (his service was in peacetime). Significantly, however, regulations governing adjudication of claims seeking service connection for PTSD were revised while this appeal was pending, and the revised 38 C.F.R. § 3.304(f)(3) provides that if an alleged stressor is related to the Veteran's fear of hostile military activity and a VA psychiatrist or psychologist confirms the stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the stressor, if the stressor is consistent with the time, places, and circumstances of the Veteran's service. The Veteran's allegations regarding service in the Korean DMZ invoke consideration of 38 C.F.R. § 3.304(f)(3); therefore, whether or not he/his unit was actually stationed at the DMZ is a critical factor that must be conclusively resolved. The Board's prior remand sought development as to whether of not the Veteran served at the DMZ. The development to date appears to have been limited to the Veteran's service personnel records, which show he served in Korea (a point not in dispute), but not where his unit was stationed, and specifically whether or not it was at the DMZ. To substantiate a claim of service connection for PTSD where a veteran did not serve in combat, there must be credible supporting evidence that the claimed inservice stressor occurred, and medical evidence of a link between the stressor and the PTSD diagnosis. The Veteran's alleged stressor events in service included one of a sexual assault while he was on leave serving in Korea (although he had previously denied sexual trauma). He had specifically identified therapist (SF) as the only therapist in whom he had confided (in April 2003) the circumstances of the sexual assault. Records from the medical provider that employed SF include the report of an April 2003 visit, which contains no mention of a sexual assault in service. However, a subsequent (November 2004) summary by the provider notes that a therapist was recently (i.e., to the November 2004 visit) able to assist the Veteran in retrieving from his memory circumstances of the sexual assault. Records received from the provider (Affinity services, from which the Veteran sought assistance in obtaining VA and SSI benefits) do not include that specific report. Although the Veteran has indicated he wants VA to secure such report from Affinity, he did not respond to the RP's request for identifying information. Further stressor events alleged by the Veteran included a comrade in Korea attempting suicide (and the Veteran assisting in resuscitate him); the service department has indicated there is record of such event. In addition, the Veteran described a stressor event in service of witnessing a soldier step directly behind the breach of an artillery piece he was firing. The recoil struck the soldier and threw him about 50 feet. He was air-lifted out and the Veteran never saw him again. In a March 2003 statement, the Veteran reported the soldier's name was Larry Thomas. As such event (particularly with the injured soldier's name known) would appear to be verifiable, the Board's remand instructed that the RO ask the Veteran to provide information such incident (and then seek verification). The record does not show conclusive development as to whether or not this alleged stressor event occurred; as the soldier's name is known, presumably it is capable of verification. Service connection is warranted for disability resulting from personal injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110. The record shows psychiatric diagnoses other than PTSD. Specifically, VA examination in June 2010 found a diagnosis of depression, not otherwise specified. The examiner noted the Veteran's reports of multiple traumas in service, including "fellow soldiers committing suicide, accidentally killing civilians including children, trying to rescue a bunkmate who overdosed, and being drugged and sexually assaulted": The examiner indicated she tried to contact the RO to ascertain which stressor was verified, but was unable to do so. She opined that the diagnosis "Depression not otherwise specified, is at least as likely as not related to his military experiences/" She did not identify the experience(s) (disease or injury in service) to which the diagnosis was related. Inasmuch as none of the noted events has been verified, the examination report and opinion are inadequate for rating purposes. The RO returned the case for clarification. The June 2010 3examiner was apparently unavailable. The case was then forwarded to another psychologist who offered the following explanation (based on a review apparently of only the June 2010 examiner's opinion): [The Veteran " ruminates and broods over his military traumas and experiences intense guilt that he refers to as "survivor guilt' Thus his military experience is connected to the current diagnosis of depression'". This opinion is entirely based on reports (by the Veteran to a June 2010 examiner) of events that have not been verified, or found to be credible. It is totally without probative value. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). When VA arranges for an examination in connection with a claim for compensation benefits, it must ensure that the examination is adequate for rating purposes. As the examination and addendum opinion described above clearly are not, another VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO must arrange for exhaustive development in the matter (to include by search of unit records, if necessary) and make a formal determination as to whether the Veteran served at the DMZ while stationed in Korea (and which if any of his accounts describing events he observed at the DMZ are credible, and which are not). The RO should contact the Veteran and request he provide any additional information regarding the incident in which Larry Thomas was injured or killed, including the unit he was assigned to and the date the incident occurred. (The incident where a soldier was thrown 50 feet after stepping directly behind the breach of an artillery piece he was firing.) The RO should seek verification of the incident if adequate information is received. With the Veteran's assistance (by providing necessary releases), the RO should secure for the record copies of any outstanding records of private psychiatric evaluation or treatment (specifically those noting his descriptions of any sexual assaults in service to which reference is made in November 2004). 2. The RO should make a listing of all alleged stressor events in service described by the Veteran in his various statements to VA and in medical histories provided to VA and private providers. The RO should make a formal determination (making all credibility assessments necessary) as to which, if any, of the alleged stressor events in service is corroborated by credible supporting evidence, and which is/are not. 3. Thereafter, the RO should arrange for the Veteran to be examined by an appropriate VA psychiatrist or psychologist (who has not previously examined him) to determine the nature and likely etiology of each current psychiatric disability found. The RO must advise the examiner: (a) whether the time, circumstances, and location of the Veteran's service were consistent with a fear of hostile military or terrorist activity (i.e., specifically whether he served at the DMZ and the alleged events there transpired as he describes while he was stationed there) and (b) of what (if any) alleged stressor event(s) in service is/are corroborated by credible supporting evidence. The examiner must review the Veteran's entire record in conjunction with the examination. Based on examination/interview of the Veteran and review of the record, the examiner should provide responses to the following: (a) Please identify, by diagnosis, each psychiatric disability entity found. Specifically, does the Veteran have a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) based either on a stressor event that is corroborated by credible supporting evidence or based on a fear of hostile military or terrorist activity (that the RO found to be consistent with the circumstances of his service)? If PTSD is diagnosed please identify the specific underlying stressor event. (b) For each psychiatric disability entity other than PTSD diagnosed, please identify the likely etiology. Specifically, is it at least as likely as not (a 50 % or better probability) that the psychiatric disability resulted from a disease, injury, or event in service. If a psychiatric diagnosis is determined to have resulted from disease, injury or event in service, please identify such disease, injury, or event. The examiner must explain the rationale for all opinions, citing to supporting factual data. 4. The RO should then review the record, ensure all development sought is completed, and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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 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). _________________________________________________ GEORGE R. SENYK 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).