Citation Nr: 1332561 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-14 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from March 1974 to December 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for PTSD. In June 2009, the appellant submitted a notice of disagreement with the October 2008 rating decision. Following the issuance of a Statement of the Case in February 2010, the appellant perfected an appeal via his submission of a timely VA Form 9, Appeal to Board, in April 2010. On his VA Form 9, the appellant indicated that he wished to attend a Board videoconference in connection with his appeal. Later that month, however, the appellant submitted a signed statement withdrawing his hearing request and asking that his case be forwarded to the Board for a decision without further delay. The Board notes that, although the issue on appeal was characterized by the RO as entitlement to service connection for PTSD, in light of the appellant's assertions and the evidence of record, the Board has recharacterized the issue more broadly in order to clarify the nature of the benefit sought. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). It is clear that the appellant is not prejudiced by the Board's recharacterization of the issue, as the matter is being remanded for additional evidentiary development with subsequent reconsideration by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the reasons set forth below, a remand of this matter is necessary. 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 The appellant contends that he developed PTSD as a result of being assaulted during active duty. Specifically, he recalls that sometime between May 1975 and September 1975, he was attacked by another soldier. He claims that he sustained several lacerations in the attack and was thereafter treated in the emergency room at Darnall Army Hospital where he received 70 to 100 stitches. The record currently available to the Board contains very limited service treatment and personnel records. The available records, essentially consisting of only enlistment and separation examinations and DD Forms 214, are entirely negative for any indication of an in-service assault or a psychiatric disability, including PTSD. The record reflects that the RO has undertaken substantial efforts to obtain clinical records from the Darnall Army Medical Center itself, including any records documenting treatment following the alleged assault. That facility, however, has repeatedly and unambiguously responded that a search of their files indicates that they have no records pertaining to the appellant corresponding to the period from January 1975 to December 1975. Based on the efforts undertaken by the RO, as well as the unambiguous responses received from the Darnall Army Medical Center, the Board finds that further requests for treatment records from this facility would be futile. It is less clear, however, whether such a conclusion can be reached with respect to other potential avenues of development. For example, in its January 2010 response to the RO's request for records, the Darnall Army Medical Center indicated that a thorough search of their files revealed no records pertaining to the appellant and that the medical records sought by the RO had been sent to the National Personnel Records Center (NPRC). It does not appear that the RO made a follow-up request to the NPRC. The Board also notes that, although earlier requests to the NPRC for the appellant's service treatment and personnel records were not successful, the record shows that following his discharge from active duty, he was transferred to an Army Reserve unit (Company B 980 Engineering Battalion, 2819 D West 4th Street, Lubbock, Texas) and his records were forwarded to that unit. See e.g. VA Form 07-3101 containing Adjutant General response of February 5, 1980, to the effect that "individual is assigned to a USAR unit. The attached inquiry should be forwarded to the unit of assignment for the requested information." It does not appear that VA has undertaken efforts to locate any additional records which may be located with the reserve unit. Given the matter at issue in this case, the Board finds that the appellant's service treatment and personnel records are relevant and the necessary efforts to obtain them must therefore be undertaken. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2013) (the duty to assist requires VA to make as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including the service department, and VA may only end its efforts to obtain such records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile). The Board also notes that service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with the applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). The evidence required to support the occurrence of an in-service stressor varies depending on whether or not a veteran was engaged in combat with the enemy. Generally, where the record does not establish combat service, assertions of in-service stressors, standing alone, cannot as a matter of law provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the claimant must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Where a PTSD claim is based on an in-service personal assault, evidence from sources other than service records may serve to corroborate the account of the stressor incident. In such cases, VA is expressly required by regulation to advise a claimant that evidence from sources other than his or her service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and thereafter allow him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(3) (2013). A review of the record indicates that the appellant has not yet been provided with the required notification and an opportunity to respond. This must be accomplished on remand, given the nature of his contentions. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the appellant and his representative with appropriate notice pursuant to 38 C.F.R. § 3.304(f), which includes an advisement that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of his claimed in-service stressor. He should thereafter be allowed the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 2. The RO/AMC should also undertake the necessary efforts to obtain the appellant's complete service treatment and personnel records from the service department, to include contacting the NPRC, the appellant's former reserve unit, or other appropriate repository of records, as necessary. If the efforts undertaken to locate these records are unsuccessful, the RO/AMC should document the attempts that were made to locate these records and explain why further attempts to locate or obtain these records would be futile. The RO/AMC should also compliance with the provisions of 38 C.F.R. § 3.159(e) by providing the appellant with appropriate notice. 3. After conducting any additional development deemed necessary, to include a VA medical examination if required based on any additional evidence received pursuant to the development outlined above, the RO/AMC should readjudicate the claim, considering the appellant's entitlement to service connection for a psychiatric disability, to include PTSD. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and an appropriate opportunity to respond. The case should then be returned to the Board in accordance with applicable procedures. 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). _________________________________________________ JESSICA J. WILLS 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).