Citation Nr: 1331282 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-29 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from July 1981 to September 1996. This matter came to the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction of the Veteran's case is currently with the Sioux Falls, South Dakota, RO. In June 2009, the Veteran testified during a hearing at the RO before the undersigned. A transcript is of record. In June 2011, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND Unfortunately a review of the evidence in this case reveals that the RO did not comply with the Board's June 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). While some of the ordered development was accomplished, such as scheduling the Veteran for a VA examination in January 2013, other action requested by the Board was not completed. Specifically, in its June 2011 remand, the Board directed the RO/AMC to send the Veteran notice of the current regulations regarding substantiation of his claim for service connection for PTSD in accordance with the Veterans Claims Assistance Act (VCAA) that addressed the amended provisions of 38 C.F.R. § 3.304(f), effective July 13, 2010. This was not accomplished. Rather, a review of the record shows that, while the AMC sent the Veteran a VCAA notice letter in July 2011, there was no discussion of the amended regulation in that letter. Id. The January 2013 VA examination report indicates that an examiner confirmed that the Veteran's claimed stressor of serving in war zones, including Operation Just Cause in Panama, from December 1989 to August 1990 and Operation Desert Storm in Saudi Arabia, in 1991, 1992, and 1993, was adequate to support a diagnosis of PTSD and that his symptoms were related to the stressor. However, two of the alleged stressors reported by the Veteran appear inconsistent with the places, types and circumstances of his service. The first alleged stressor involves exposure to small arms fire exchange in Panama and seeing mass graves being dug. An Enlisted Performance Record shows that, from August 1989 to August 1990, the Veteran was a Nondestructive Inspection (NDI) Laboratory Specialist, and there is no mention of any exposure to small arms fire or mass graves. His second alleged stressor involves a small fire exchange at an airport in Somalia in October and November 1993. But, military personnel records show that he was deployed in Saudi Arabia at that time. Nevertheless, two remaining stressors described by the Veteran require further development. An October 2011 e-mail from the Air Force Historical Research Agency indicates that additional information was needed to verify the Veteran's alleged stressor regarding clean up of the "Highway of Death" during Operation Desert Storm/Desert Shield. The Agency archivist stated that "without the [V]eteran's unit or base of assignment during February and March 1991, I cannot conduct any research on this portion of the [V]eteran's claim." The Board's review of the Veteran's service personnel records shows that he was assigned to 49th Equipment Maintenance Sq (TAC) Holloman Air Force Base, New Mexico, from August 1990 to August 1991. This information should be provided to the archivist for verification of the Veteran's alleged stressor. Additionally, a December 2012 RO Memorandum notes one of the Veteran's stressors-observing a beheading in a Saudi Arabian marketplace in 1988. The Memorandum provides that: "[h]is record is silent for service in Saudi Arabia in 1988." But, a careful review of the Veteran's service treatment records reveals that, in August 1988, he was "requesting [temporary duty (TDY)] clearance-Saudia [sic] Arabia...." Further, an August 1988 dental record notes that: "[m]ember cleared for TDY". Thus, it appears that the Veteran may have had TDY in Saudi Arabia as early as 1988. Further clarification is needed. Another inquiry should be sent to the Air Force Historical Research Agency with the above-mentioned information. Although the Board regrets further delay, the case must be returned to the RO for additional development. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with VCAA-compliant notice as to the amended provisions of 38 C.F.R. § 3.304(f) pertaining to verification of in-service stressors for a service connection claim for PTSD, effective July 13, 2010. 2. Contact the Air Force Historical Research Agency to verify the Veteran's two remaining stressors. The first stressor pertains to the cleanup of the Highway of Death during Operation Desert Storm/Desert Shield, from February to March 1991, when he was assigned to the 49th Mission Support Squadron (TAC) Holloman AFB, NM. The second alleged stressor involves his witnessing a beheading in a Saudi Arabian marketplace in 1988. 3. After completion of the above, and any additional development deemed warranted, the RO/AMC should review the expanded record and readjudicate the issue on appeal. If the issue on appeal remains denied, issue a supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. 2013). _________________________________________________ D.J. DRUCKER Acting 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).