Citation Nr: 1335608 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-04 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and his son ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from April 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October and November of 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In October 2012, the Board remanded the Veteran's claim in order that he may be provided with the Travel Board hearing he requested. The Veteran appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge in April 2013. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The Board further notes that, in August 2012, the Veteran submitted a VA 21-22 appointing the Oklahoma Department of Veterans Affairs as his representative after his prior attorney was permitted to withdraw from representing him in June 2012. 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 Veteran claims that he has PTSD due to his experiences while serving in the Republic of Vietnam. His DD214 confirms that the Veteran served in the Republic of Vietnam from July 1969 to March 1970; however, military occupational specialty (MOS) is listed as "Cook" and no medals or awards related to service in the Republic of Vietnam are listed. Thus, the Board finds that, on its face, the Veteran's service in Vietnam was not in a combat-related position such that the combat presumption set forth in 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). The Board notes that a mere assertion of combat service, alone, is insufficient to establish this fact. VAOPGCPREC 12-99; Zarycki v. Brown, 6 Vet. App. 91 (1993) (mere presence in a combat zone is not sufficient to establish combat service). Consequently, there must be credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In the alternative, the Board notes that, effective July 13, 2010, the regulations governing adjudication of service connection for PTSD were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in-service stressor. For cases pending before VA as of that date, the following regulation applies: 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. 38 C.F.R. § 3.304(f)(3). Moreover, the Veteran's statements as to his stressors must be consistent with the circumstances, conditions or hardships of such service. 38 C.F.R. § 3.304(d), (f). In a June 2009 statement, the Veteran related that his job was to ride on the food truck but, despite that, he contributed physically in battle as well. He stated that they were always in battle and had to be prepared and alert at all times, especially at night. He related that, on one particular day, they were fired upon and he remembers seeing his friends being killed along with innocent children, women, and men. The Veteran, however, did not provide any details as to location and timeframe in which this incident occurred so that efforts could be undertaken to corroborate this stressor The Board also notes that the Veteran underwent a VA mental disorders examination in December 2012 that was not related to this per se but to a claim for service connection for depression secondary to diabetes mellitus, type II. The examiner, however, diagnosed the Veteran to only have PTSD based upon his examination. In doing so, the examiner stated that the Veteran described near death experiences and experiences that involved witnessing death while fighting in Vietnam. He did not provide any specifics, however, as to what experiences the Veteran related he had in Vietnam; hence, this evidence is insufficient to establish a corroborate stressor. Furthermore, the examiner inaccurately stated that the Veteran's DD214 confirms wartime combat duty when his DD214 shows the Veteran had a non-combat MOS and did not receive any combat-related medals or awards. Consequently, the Board deems this examination inadequate for purposes of adjudicating the Veteran's claim under the new provisions in 38 C.F.R. § 3.303(f)(3). At his Board hearing in April 2013, the Veteran testified that he was in trucks that ran over Vietnamese (local villagers). He also stated that he would sometimes arrive to deliver food at a location where they had just had a battle and he saw the dead. Again, however, the Veteran failed to provide specifics as to time and location sufficient enough for research to be conducted to corroborate these stressors. Consequently, the Board finds that additional development is necessary to obtain information relating to the Veteran's claimed in-service stressors, including requesting again that the Veteran complete the PTSD Questionnaire setting forth specific claimed in-service stressors, the unit assigned to at the time the stressors occurred, and a two month timeframe of when the stressors occurred. The Veteran is hereby advised that, without this specific information, there is no way that VA can have the research done that is necessary to corroborate his claimed stressors. Without such corroboration, service connection cannot be granted for PTSD unless an examiner states that it is due to the Veteran's fear of hostile military or terrorist activity. In addition, to assist in further understanding the Veteran's activities during his service in Vietnam, a full copy of his service personnel records (which had not been obtained and associated with his claims file) should be obtained, as well as unit history records. Thereafter, the Board finds that the Veteran should be afforded a VA Initial PTSD examination in which the examiner should consider whether the Veteran has PTSD with symptoms that are related to any stressor that has been independently corroborated or are related to the Veteran's fear of hostile military or terrorist activity. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to complete the PTSD Questionnaire setting forth specific stressful events that occurred during his service in Vietnam that he claims is the cause of his PTSD. He should be advised that, unless he provides the specific event, unit assignment and a two-month timeframe that the event occurred, VA will not be able to have the military records researched to corroborate his claimed in-service stressors. 2. If the Veteran provides sufficient information, then submit the appropriate information to the U.S. Army and Joint Services Records Research Center (JSRRC) and ask them to provide any available information that might corroborate the Veteran's alleged in-service stressors. 3. Contact the National Personnel Records Center (NPRC), or any other appropriate agency, and request it provide a complete copy of the Veteran's service personnel records and any unit history records of the Veteran's assigned unit while serving in the Republic of Vietnam. It is noted that the Veteran's DD214 indicates his last assignment was "USAS TRA&COM PHU LAM." If any records are not available, a negative reply should be provided. 4. After all additional development has been completed, schedule the Veteran for a VA Initial PTSD examination. If there has been a finding of a verified in-service stressor (or stressors), the examiner should be advised of said verified stressor(s) and be requested to provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's PTSD resulted from the identified verified stressor(s). If a verified in-service stressor has not been identified (or the examiner opines that the diagnosis of PTSD is not supported by any verified in-service stressor), then the examiner should be asked to render an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that the in-service stressor (or stressors) claimed by the Veteran is (or are) linked to fear of hostile military or terrorist activity and adequate to support a diagnosis of PTSD as set out under DSM IV, and whether the Veteran's symptoms are related to the claimed stressor(s). [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 examiner should be advised that, in rendering his/her opinion, he/she should disregard any stressors reported that do not meet the above criteria (specifically, any stressors not the result of hostile military or terrorist activity). The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran's theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 5. After all additional necessary development has been accomplished (including ensuring the adequacy of the VA examination report), the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran 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 that are remanded by the Board 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). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).