Citation Nr: 1331987 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 03-24 124 ) 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). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from April 1974 to November 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In March 2005, in pertinent part, the Board denied the Veteran's claim for service connection for PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2006 decision, the Court granted a Joint Motion for Remand filed by the parties and remanded back that portion of the Board's March 2005 decision which denied service connection for PTSD. The Veteran's claim has since been remanded by the Board in May 2007, in March 2009, in January 2011, and again in October 2012. Following the most recent development requested, the RO issued a supplemental statement of the case (SSOC) in February 2013 and thereafter returned the Veteran's appeal to the Board for further appellate review. In September 2013, the Veteran's attorney submitted additional evidence to the Board and waived initial RO consideration of that evidence. The Board accepts the evidence for inclusion into the record on appeal. Nonetheless, in light of the further development requested below, the RO will have an opportunity to consider the evidence prior to the Board's review. The appeal is REMANDED to the Sioux Falls RO. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has PTSD that is a direct result of his military service. He alleges a number of incidents which he contends occurred on U.S. naval bases at Midway Island in the Pacific Ocean, as well as on Treasure Island in San Francisco Bay. None of the incidents involve combat, and the Veteran has specifically reported that he was not involved in combat. A number of the incidents alleged have been reported as being racially motivated; the Veteran has reported that there was racial tension on the naval bases between black sailors and white sailors. In particular, on Treasure Island, the Veteran alleges witnessing a group of black sailors stabbing two white sailors following which the black sailors reportedly chased the Veteran, forcing him to hide in a trash dumpster. He also reported being sprayed with a high pressure fire hose which knocked him into San Francisco bay. With respect to service on Midway Island, in particular, the Veteran has alleged that he assaulted Vietnamese detainees, witnessed his roommates assault another sailor (which resulted in the conviction/incarceration of the roommates for attempted murder), killed a number of the island's gooney birds and hung one or more of the dead birds in the base commanding officer's living quarters, and that he was struck and injured by a truck on base while riding a bike. The Veteran has also reported that while standing guard duty he was physically attacked and assaulted (personal assault) by another sailor. He claims the attack/assault is evidenced by treatment he received for right hand abrasions and for a right hand fracture he incurred attempting to defend himself. Furthermore, the Veteran has reported that he was charged and acquitted of attempted murder of another sailor. In addition to the above, the Veteran testified before the RO in September 2003 that there was a great deal of racially motivated fighting on Midway Island, that he had been questioned and threatened by law enforcement authorities in the killing of the island's gooney birds, and that he attempted to talk 1500 men into charging the quarter deck on Midway Island and taking over the base. While the Veteran's service personnel records contain evidence of non-judicial punishment for assault and battery, there is no indication that he was charged and/or acquitted of attempted murder or arrested and questioned for killing gooney birds. Otherwise, in September 1975, the Veteran was cited for failure to go to his appointed place of duty as well as for use and possession of marijuana, and being present where marijuana was being used. The Veteran's service treatment records (STRs) do not reflect any reference to or treatment for PTSD. In March 1975, the Veteran complained of nerves and insomnia. However, the clinician at that time referenced that the Veteran was "excited about going home." In April 1975, he was seen for abrasions of the 3rd and 4th digits of the right hand after getting his fingers caught on the rim of a basketball goal. In September 1975, he was seen for a right hand injury which resulted in the diagnosis of a fracture (for which service connection is in effect). There was no notation that this injury resulted from a personal assault. He was seen again in September 1975 and diagnosed with hives of the right mandible. The Veteran reported at that time that the hives usually appeared in times of emotional stress. An October 1975 separation examination was negative for a psychiatric disorder, to include PTSD. Attempts by the RO to otherwise verify the above reported stressors with the National Personnel Records Center (NPRC), Navy Criminal Investigative Service (NCIS), National Archives and Records Administration (NARA), United States Armed Services Center for Research of Unit Records (USASCRUR), and Judge Advocate General (JAG), as well as with the military newspaper "Stars and Stripes" have resulted in negative responses. The Board also notes that the Veteran was first diagnosed with severe symptoms of PTSD in December 1999. At that time, the VA clinician who made the diagnosis appeared to be under the impression that the Veteran had served in Vietnam. VA outpatient treatment records dated in 2001 and 2010 show continued treatment for PTSD. Lay statements dated in 2003 from the Veteran's father and his brother note behavioral changes in the Veteran after his discharge. A VA medical professional reviewed the claims folders and supplied an August 2009 report regarding whether the Veteran's alleged in-service personal assault likely occurred. Following review of the evidence, the examiner opined that it was less likely that the Veteran exhibited behavioral changes from the time of the claimed assault. He noted that the Veteran showed behavioral issues resulting in numerous disciplinary infractions prior to the date of the reported assault. A private psychiatric report, dated in October 2010, reflected the clinician's interview with the Veteran and a review of his service records. The clinician opined that the Veteran had PTSD of service origin. Added to the record in April 2012 and August 2012 were statements from sailors who reportedly served with the Veteran on Midway Island. In their statements, the sailors attested to the racial tension on Midway Island. One sailor recalled that the Veteran was jumped a few times for being a white sailor and for saying things that some of the black sailors reportedly did not like. The sailor recalled that the Veteran's hand was broken and he nearly lost an eye. He also recalled that there were fights and stabbings on a weekly basis on Midway Island. In an August 2012 report, a private physician, who specialized in psychiatry and neurology, opined that the Veteran had PTSD of service origin. She identified having reviewed the Veteran's claims folders. A subsequent report/opinion from a VA psychologist in January 2013 noted a diagnosis of personality disorder not related to service. The psychologist discussed the Veteran's various claimed stressors. In August 2013, the private physician who provided the August 2012 opinion provided an addendum opinion favorable to the Veteran's claim. As noted above, the RO has done extension development in attempting to verify the Veteran's reported stressors. Responses to the RO's verification requests have been negative. In the above noted April 2012 statement from a sailor who reportedly served on Midway Island with the Veteran, it is noted that another sailor (identified later by the Veteran as a chief petty officer) had hung himself on the Midway Island base golf course. Later, in the above August 2012 private medical report/opinion, the clinician noted the Veteran's report of a sailor hanging himself from a tree at the island's golf course. According to the Veteran's report, people were poking the deceased sailor with a stick. The Veteran reportedly attempted to help get the body down. Additionally, during the January 2013 VA examination, the Veteran reported the hanging incident as one of his stressors causing his PTSD. The VA psychologist conducting the interview and examination noted the following, The veteran told me that he knew an enlisted man who was having sex with a Chief Petty Officer's wife on Midway. The veteran indicated that he played golf on a local golf course, and he found the Chief Petty Officer hanging from a tree on the golf course. The veteran told me that he was horrified when he saw that the Chief Petty Officer had hung himself. This event would meet the DSM-IV-TR criteria for a traumatic stressor event related to PTSD. However, there is no documentation in the veteran's claim[s] file that would verify this event, and there are no indirect markers to verify the event. The event is not related to hostile military or terrorist activity. A review of the claims folders does not reflect action has been undertaken to verify the alleged hanging death/suicide of a sailor as identified by the Veteran. An April 2011 report of general information (VA Form 21-0820) reflects a documented conversation between a VA representative and an individual from the office of the attorney representing the Veteran. The following is noted: Contact said she also had a researcher attempting to verify an incident regarding a suicide the [V]eteran claimed as a stressor. Contact requests that VA allow a month for receipt of the results of this research. A review of claims folders and Virtual VA does not reflect anything further regarding the referenced "suicide" in the VA Form 21-0820. Whether the reported hanging/suicide of the sailor at the base golf course is the referenced "suicide" in the VA Form 21-0820 is unclear. Nonetheless, the duty to assist requires VA to make an effort to verify the alleged stressor incident. Therefore, the RO should undertake any necessary action to verify whether there was a hanging of a sailor from a tree on the Midway Island golf course while the Veteran was stationed on the island. In the event the stressor event is verified and occurred during the Veteran's duty on Midway Island, the RO should refer the claims folders back to the January 2013 VA examiner for an addendum medical opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folders the Veteran's most recent VA treatment records dated since February 2013. The Veteran's VA treatment appears to be through the VA Black Hills health care system. 2. Contact the Veteran and ask that he provide as much descriptive information as possible regarding the alleged hanging death/suicide of a sailor (chief petty officer) on Midway Island's golf course. Advise him that additional information is needed to verify this reported stressor incident. 3. Following the development requested in paragraph #2, the RO should review the claims folders and prepare a summary of the incident noted in paragraph #2, based on review of all pertinent documents along with the Veteran's statements regarding the incident. This summary, along with any other supporting documents, should be submitted to the appropriate records/research center for verification of the alleged incident (death), to include the U.S. Army and Joint Services Records Research Center (JSRRC), National Archives and Records Administration, Naval Criminal Investigative Service (NCIS), and/or the Department of the Navy. Any additional development recommended by any particular office contacted should be accomplished by the RO. 4. After completing the above action and any other development as may be indicated, and only if the alleged stressor event (the hanging death/suicide of a sailor on Midway Island's golf course) is verified as having occurred while the Veteran was on Midway Island, then the RO should refer the claims folders back to the January 2013 VA examiner for an addendum medical opinion. The examiner should again review the claims folders and offer an opinion as to (1) whether the alleged stressor incident (the hanging death/suicide of a sailor on Midway Island's golf course) is sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the Veteran's current symptomatology and the stressor incident to produce PTSD. If the examiner's review and consideration of the stressor event results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran's active service. A thorough explanation for the examiner's opinion must be provided. 5. Following the development above, readjudicate the issue on appeal. If the benefit sought remains denied, the Veteran and his attorney should be provided an SSOC and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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 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). _________________________________________________ THOMAS H. O'SHAY 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).