Citation Nr: 1329969 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-28 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1975 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In August 2012, the Board adjudicated a number of claims. The above-captioned issue, along with claims for service connection for disabilities of the cervical, thoracic, and lumbar spine, were remanded for further development. In a June 2013 rating decision, the claims for service connection for disabilities of the cervical, thoracic, and lumbar spine were granted by the RO. As such, these claims are longer in appellate status and will not be addressed below. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Board has considered documentation included in the Virtual VA system in reaching the determination below. No new records pertinent to this appeal were found therein. 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 A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. In the August 2012 remand, the Board noted that the Veteran in this case has been diagnosed with PTSD, as well as other psychiatric disorders, including depression. The Board noted that during the course of the appeal, the Veteran stated that he feared for his life while serving on active duty in the military. He reported to a December 2005 VA examiner, for example, that he saw his life flash before his eyes 13 times in service. He also recalled being in a frightening situation 25 times. In the course of the appeal, the Veteran also alleged specific in-service stressors the he believes have caused his current disability. In January 2007, the Veteran reported stressors of watching his friend being dragged to death after a parachute accident around March 1977, and witnessing a plane crash with trapped passengers around May or June 1977. He also asserted that while in the Soviet Union he was involved in reconnaissance missions and was shot at by MIG fighters and almost killed. He gave a time frame for this of December 1975 to April 1976. Effective July 10, 2010, under 38 C.F.R. § 3.304(f), service connection for PTSD requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; 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. The following provisions apply to claims for service connection of PTSD diagnosed during service or based on the specified type of claimed stressor: (3) If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The Veteran in this case receives consideration under the amended version of 38 C.F.R. § 3.304(f) because his claim was appealed to the Board prior to July 13, 2010, the date VA amended the regulation, but not decided by the Board as of July 13, 2010. Accordingly, in the August 2012 remand, the Board directed the RO to verify if the Veteran's unit had hostile contact. Specifically, in Remand Directive #5, the RO was instructed to "contact the appropriate service department and obtain the unit records for the HHC 7th Signal Brigade for the time period between December 1975 to April 1976 to verify if the Veteran's unit had any hostile contact." If hostile contact was verified, a VA examination was to be conducted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In December 2012, the RO contacted the U.S. Army and Joint Service Records Research Center (JSRRC). However, rather than requesting verification of simply whether the Veteran's unit had any hostile contact, the RO recited specific, detailed incidents alleged by the Veteran in the course of the appeal, and requested verification of each incident. The JSRRC responded that they were unable to locate unit records submitted by the 7th Signal Brigade. The JSRRC further stated that they were "unable to document [the Veteran's] involvement in these stated incidents." If the Veteran's unit records are unavailable, the request to verify whether or not the Veteran's unit had any hostile contact should include a search for records from the unit's higher command. Information about the actions and circumstances of service in the HHC 7th Signal Brigade from December 1975 to April 1976, as documented in the command diary, higher command history, and the like, should be sought. In reaching this determination, the Board is fully aware of the dates of service. Accordingly, the case is REMANDED for the following action: 1. Contact the JSRRC, or other appropriate agency if the AOJ determines that another entity would hold the appropriate records, in order to address the following question: did the HHC 7th Signal Brigade have any hostile contact from December 1975 to April 1976? If the Veteran's unit records are unavailable, the search for verification of hostile contact should include a request for records of the unit's higher command. Information about the actions and circumstances of service in the HHC 7th Signal Brigade from December 1975 to April 1976, as documented in the command diary, higher command history, and the like, should be sought. 2. If hostile contact is verified, schedule the Veteran for VA examination by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. On examination, the examiner should report all psychiatric disabilities found to be present. After examining the Veteran and reviewing the claims file, the examiner should respond to the following: Does the appellant have PTSD? If he has PTSD, are the symptoms related to his fear of in-service hostile military or terrorist activity? In the alternative, the examiner is asked to express an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any other current psychiatric disorder(s) was/were manifested during or otherwise related to service? If so, clearly identify such current psychiatric disorder(s). If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an adequate rationale for all opinions expressed and conclusions reached. 3. The Veteran is hereby notified that it is his responsibility to report for any 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). 4. After the requested opinion has been obtained, the RO should review the examination report to ensure it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing all indicated development, the RO should readjudicate the appeal in light of all the evidence on file. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ H. N. SCHWARTZ 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).