Citation Nr: 1331129 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-29 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to March 1955. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this issue for further evidentiary development in December 2008, September 2009, January 2012, and October 2012. The case has now been returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. In this case, there has not been sufficient compliance with Board's prior remand directives. Therefore, although further delay is regrettable, another remand is required to verify the Veteran's reported in-service stressors. The Veteran asserts that he witnessed two stressful events involving the deaths of fellow servicemen while he was stationed in Heidelberg, Germany and that he currently suffers from PTSD as a result. First, he relates that he was crawling under barbed wire during an obstacle course exercise in September 1953, when three or four men in front of him were killed by accidental live machine gun fire. The Veteran indicated that the soldiers killed were from Company C or D. The Veteran's Department of Defense Form 214 (DD Form 214) indicates that his most significant assignment was to Company B, 112th Infantry Regiment. Next, he states that during combat maneuver exercises in November 1953, he was walking behind a tank which skidded into a ditch, hit a tree, and killed a soldier. The AOJ has attempted to verify the Veteran's in-service stressors with the U.S. Army Joint Services Records Research Center (JSRRC) and the National Personnel Records Center (NPRC). The case was previously remanded because the requests made to JSRRC and NPRC were inadequate and/or the responses received were unclear. In October 2012, the Board directed the AOJ to request that NPRC search the morning reports of Companies B, C, and D of the 112th Infantry Regiment from September 1, 1953 to November 30, 1953 to verify the Veteran's stressors. In May 2012, the AOJ requested that NPRC search the morning reports of Company B of the 112th Infantry Regiment from September 1, 1953 to October 30, 1953 for "remarks containing <>." In June 2012, the NPRC responded and indicated that it had searched the morning reports, but "no remarks located pertaining to allegation." This Board notes that the request did not include dates through November 30, 1953 and did not include Companies C and D. Furthermore, it is unclear what "remarks containing <>" means. The NPRC should have been requested to search for references to four men being killed during an obstacle course exercise and one man being killed during a tank accident. In April 2013, the AOJ requested that NPRC search the morning reports of Company B of the 112th Infantry Regiment from September 1, 1953 to November 30, 1953 containing remarks regarding <>." In August 2013, the NPRC responded stating that "unit history, specifically-staff daily journals, after action reports, and operational reports-lessons learned are not maintained at [the NPRC]." First, the Board notes that the April 2013 request to the NPRC was insufficient because it did not ask the NPRC to search the morning reports for Companies C and D, in addition to Company B. Second, the NPRC's response is confusing. The AOJ requested that it search morning reports, not unit histories, etc. Furthermore, the NPRC previously responded that it had searched the morning reports for Company B of the 112th Infantry Regiment, therefore indicating that it did, in fact, have such records. The Board emphasizes that because the Veteran's service records were destroyed in an accidental fire, VA has a heightened obligation to assist the Veteran in the development of his claims. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). To this end, VA must ensure that all reasonable measures are taken to verify the Veteran's in-service stressors. Because such efforts have been inadequate thus far, a remand is required. Accordingly, the case is REMANDED for the following actions: (Please note, 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. Request that NPRC search morning reports of Companies B, C, and D of the 112th Infantry Regiment from September 1, 1953 to November 30, 1953 regarding an obstacle course accident in September 1953 and a tank accident in November 1953, both resulting in American fatalities. 2. If searches are undertaken using a unit designator other than Companies B, C, and D of the 112th Infantry Regiment - for example, 1st Battalion, 112th Infantry Regiment - verification should be obtained that Companies B, C, and D were a part of that (parent) organization during the specified time period. 3. If, and only if, the Veteran's reported stressor(s) are verified, schedule him for a VA psychiatric examination. The claims file must be made available to and be reviewed by the examiner and the examination report should note that the claims file was reviewed. The examiner should specifically offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any psychiatric disorder demonstrated during the pendency of the appeal, to include, but not limited to depression and PTSD, is related to the Veteran's period of active service. The examiner is requested to specifically address whether the Veteran met the diagnostic criteria for a diagnosis of PTSD, depression, or any other psychiatric disorder at any time during the appeal period. In this regard, the examiner should specifically address the April 2007 private diagnoses of PTSD and a depressive disorder, and comment as to the effect, if any, of the Veteran's memory problems on his meeting or not meeting the DSM-IV criteria in April 2007, and at any time since. Because the Veteran is competent to report the onset of anxiety, depression, and nightmares in service, as this requires only personal knowledge, not medical expertise, as it comes to him through his senses, the examiner must also specifically address the Veteran's report of his psychiatric symptoms having first manifested during his period of active service in determining whether any current psychiatric disorder is related to active service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). The examiner must provide the rationale, with citation to relevant medical findings, for the opinions provided. 4. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 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. 2013). _________________________________________________ S. C. KREMBS 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) (2013).