Citation Nr: 1327666 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-45 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Delaware Commission of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from December 1991 to April 1992, from October 1992 to December 1992, from January 1997 to June 1997, and from February 1999 to July 2000, with one year and five months of active service prior to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating action of the Department of Veterans Affairs (VA), Regional Office (RO) in Wilmington, Delaware. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND In July 2008, the Veteran filed a claim to reopen his previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). Regarding his in-service stressor, the Veteran reported that in November of 1992, while serving as the fire chief of King Khalid Air Base in Saudi Arabia, he was beaten in the head with a gun by a Saudi National. He explained that the incident occurred subsequent to an emergency response to a fire on base, whereas he was the last of four vehicles to go through a checkpoint, and was stopped and beaten by a Saudi National who was guarding the checkpoint. The Veteran further asserted, that at the time of the incident, he was assigned to the 49th operations group (F-117) Night Hawk. In addition, in an April 2009 buddy statement, D.P. reported that he served with the Veteran in Saudi Arabia and recalled the night that the Veteran returned to the fire station after the above incident occurred. D.P. indicated that the Veteran was visibly upset when he explained that he was held at gunpoint by a Saudi guard. Regarding such incident, during an April 2011 hearing before the Board, the Veteran asserted that he reported the beating to his commander, Colonel D.M. Moreover, the Veteran further testified that he experienced another in-service stressor. Specifically, the Veteran reported that in approximately March 1997, while serving on the on the border of Croatia and Hungary during the Bosnian conflict, he was assaulted by Tech Sergeant K. He further asserted that Sergeant P. witnessed the incident, and that Tech Sergeant K. was formally charged for the assault. With respect to development pertaining to the Veteran's claimed in-service stressor of being beaten in the head with a gun by a Saudi National in November 1992, in a December 2008 response to the RO's request for the Veteran's entire personnel file, the RO was notified that there were no records at Code 13 for the Veteran. The RO was informed that another request for information should be made using Code 21. Subsequently, in a January 2009 memorandum, the U.S. Army & Joint Services Records Research Center (JSRRC) made a formal finding of a lack of information to corroborate the Veteran's reported stressor associated with his claim of entitlement to service connection for PTSD. The JSRRC, amongst other development, noted the last attempt to verify the Veteran's claimed stressor was in December 2008, which resulted in a negative response later that same month, indicating that there were no records available at Code 13. The Board finds that further development is necessary concerning the Veteran's reported in-service stressors. See 38 C.F.R. § 3.159 (2012); see also Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO fully assisted the Veteran in the development of his case, as there is no indication that the RO attempted to obtain the Veteran's entire personnel file by request through Code 21. Further, while the JSRRC made a formal finding in January 2009 of a lack of information to corroborate the Veteran's reported stressor, in April 2011, the Veteran testified that he reported the incident to his commander, Colonel D.M. In this regard, there is no indication that the RO made an additional attempt to verify the Veteran's claimed stressor, in light of this new information. Accordingly, the RO must attempt to complete the aforementioned development. Id Finally, with respect to the Veteran's claimed second in-service stressor of being assaulted by Tech sergeant K. in March 1997 while serving on the border of Croatia and Hungary, there is no indication that the RO attempted to verify such stressor. Therefore, on remand, the RO must attempt to verify the Veteran's alleged in-service stressors. Id. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include all stressors the Veteran experienced while serving on active duty. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain the Veteran's entire personnel file by request through Code 21. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Regardless of whether the Veteran's entire personnel file is obtained, the RO must direct the JSRRC to provide any information that might corroborate the Veteran's alleged stressors. Specifically, the JSRRC must attempt to verify whether the Veteran was beaten in the head with a gun by a Saudi National in November of 1992 at a checkpoint, subsequent to responding to a fire emergency on base, while serving as the fire chief of King Khalid Air Base in Saudi Arabia and assigned to the 49th operations group (F-117) Night Hawk. The JSRRC must also attempt to verify whether the Veteran reported such incident to his then commander, Colonel D.M. The JSRRC must also attempt to verify whether the Veteran was assaulted by Tech Sergeant K., who was reportedly formally charged for the assault, in March 1997, while he was serving on the on the border of Croatia and Hungary during the Bosnian conflict, and whether the alleged assault was witnessed by Sergeant P. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).