Citation Nr: 1340698	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  09-05 900	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide (Agent Orange) exposure.  

2.  Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), a depressive disorder, and schizoaffective disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran had active service from April 1967 to April 1969.  He did not serve in the Republic of Vietnam.  

This appeal to the Board of Veterans' Appeals (Board) comes on appeal from RO decisions in May 2006, denying service connection for psychiatric disability, and August 2008, denying service connection for diabetes.  

In July 2013 the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing at the RO.  A transcript of that hearing is contained in the Veteran's paperless, electronic (Virtual VA) folder.  

The Board's decision on the claim for service connection for type II diabetes mellitus is set forth below.  The claim for service connection for an acquired psychiatric disorder, to include PTSD, a depressive disorder, and schizoaffective disorder is addressed in the remand following the order; this matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran when further action, on his part, is required.  


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished.

2.  The Veteran had no overseas service and was stationed in Fairbanks, Alaska.  

3.  Diabetes mellitus, type II, is among the diseases recognized by VA as etiologically related exposure to herbicides, to include Agent Orange.

4.  As the Veteran did not serve in Vietnam or in one of the specified units elsewhere that have been determined to have involved exposure to herbicides, to include Agent Orange, within the relevant time frame; he is not presumed to have been exposed to herbicides, to include Agent Orange; moreover, actual exposure to such herbicides, within the meaning of the governing authority, has not persuasively been established.  

5.  There is otherwise no competent evidence or opinion indicating that the Veteran's Type II diabetes mellitus-first diagnosed several decades after service-is medically related to service.  


CONCLUSION OF LAW

The criteria for service connection for Type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure, are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.313 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate a claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO).  Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, by a March 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection for diabetes.  The letter also informed him of what information and evidence he must submitted and what information and evidence would be obtained by VA.  The letter also provided notice as to VA's assignment of disability ratings and effective dates.  The August 2008 rating decision reflects the initial adjudication of the claim after issuance of this letter.  Hence, the March 2008 letter-which meet Pelegrini's content of notice requirements-also meets the VCAA's timing of notice requirement.  

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim for service connection for diabetes.  Pertinent medical evidence associated with the claims file consists of service and VA treatment records, and service personnel records.  Also of record and considered in connection with the appeal is the transcript of the Veteran's 2013 hearing, along with various written statements provided by the Veteran, and by his representative, on his behalf.  The Board also finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required.

 The Board acknowledges that the Veteran has not been scheduled for a VA examination in connection with the claim for service connection for diabetes.  However, as explained in more detail below, on these facts, no examination is required.  

It is undisputed that there are no service treatment records (STRs) remotely suggesting that the Veteran had diabetes and the Veteran has conceded that all of his efforts to locate the private clinical records, which by his testimony and statements, would demonstrate that diabetes was diagnosed within the first year after service discharge, have been fruitless.  Thus, there is nothing in the record that suggests that any supporting records exist which might be obtainable and, also, there has been no request that VA taken any additional steps to fulfill the duty to assist.  

Furthermore, as for the hearing conducted, the United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.103(c)(2) requires that a presiding Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, the issues on appeal were identified at the 2013 hearing and the representative and the undersigned specifically elicited testimony from the Veteran as to the relevant clinical history and needed elements for service connection.  The undersigned sought to identify any pertinent evidence not currently of record that might have been overlooked or was outstanding that might substantiate the claim for service connection for diabetes but the relevant evidence, i.e., private clinical records in 1970, simply do not exist.  Moreover, neither the Veteran nor representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the hearing.  Thus, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the hearing was legally sufficient. 

In summary, the duties imposed by the VCAA have been considered and satisfied.  The Veteran has been notified and made aware of the evidence needed to substantiate the claim herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter addressed on the merits herein, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

If a chronic disease, such as diabetes mellitus, becomes manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of such disease during service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id. 

However, the continuity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") 

When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence.  See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

The Veteran claims that service connection is warranted pursuant to a special presumption for residuals of exposure to herbicide agents.  Specifically, under the provisions of 38 C.F.R. § 3.309(e), if a veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval, or air service and has a disease listed in 38 C.F.R. § 3.309(e), such disease shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied.  The listed diseases include Type II diabetes mellitus.

In written statements in support of his claim, and in testimony in 2013, the Veteran reported that he was exposed to "toxins" while working as a truck driver and in a warehouse in Alaska.  He offers nothing more to suggest, much less establish, that he was actually exposed to any herbicides during his military service.  

The Board points out that the Department of Defense (DOD) provided to VA an inventory regarding Agent Orange use outside of the Republic of Vietnam.  Based on the current DOD findings, the use of herbicides has only been acknowledged for specific units that served in areas along the DMZ in Korea.  See March 2003 Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003 (http://vbaw.vba.va.gov/bl/21/publicat/Letters/Other/AoKorea.doc).  Other information, such as in the CHECO Report, has been made available as to exposure in some limited circumstances, during limited time frames, in Thailand.  Also, DOD has done research concerning the use of herbicides at other locations.  

If it is determined that a veteran who served with certain units at specific locations during specific time frames, VA presumes that the veteran was exposed to Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) apply.  See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block k.  However, no such information has been made available by DOD indicating that anyone stationed in Alaska in the 1960s was potentially exposed to any herbicides.  

In sum, the record does not reflect that the Veteran was assigned to a unit specified by the DOD as having been exposed to Agent Orange during his service in Alaska.  

Thus, the Veteran is not presumed to have been exposed to Agent Orange based on his service in Alaska.  The Board also finds that record also includes no persuasive evidence of actual Agent Orange exposure so as to invoke the presumptive procedures within the meaning of applicable regulations and to warrant presumptive service connection pursuant to 38 C.F.R. §§ 3.307 and 3.309.  

The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  Here, however, the Veteran lacks competence to state that, based on his participation in certain activities, he was actually exposed to Agent Orange, because this is a matter not within his personal knowledge.  By contrast, the DOD is competent to determine whether a member of the Veteran's unit, serving in Alaska and performing those duties typical of a person with the Veteran's military occupational specialty of stock control and account specialist, was potentially exposed to Agent Orange. 

This weighs against a finding of actual herbicide exposure.  The Board further notes that there is no other objective, persuasive evidence that the Veteran was exposed Agent Orange in service, as alleged.  The Veteran has not asserted, and the record does not reflect, that he ever traveled to any area where the use of Agent Orange has been recognized.  Thus, the Veteran's testimony is not probative evidence that he was exposed to Agent Orange.  

As the current record does not support a finding of actual or presumed Agent Orange exposure, the Veteran is not entitled to presumptive service connection based on Agent Orange exposure, pursuant to 38 C.F.R. § 3.309(e). 

The record also presents no other basis for a grant of service connection for the disability under consideration.  The competent medical evidence shows a current diagnosis of Type II diabetes mellitus; however, there is no competent or persuasive evidence to even suggest a medical nexus between such disability and service.

The Veteran's service treatment records are negative for any findings or diagnosis of Type II diabetes mellitus; hence, the disability was not shown in service.  Moreover, although the Veteran testified that diabetes was diagnosed as a private facility within the first post-service year, his assertions of what a doctor told him do not constitute competent medical evidence.  See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (when the underlying medical nature of evidence has been significantly diluted, as in the connection between a lay account of past medical information, and filtered through layman's sensibilities, such evidence is too attenuated and inherently unreliable to constitute competent evidence).  

Therefore, there is no basis for a grant of service connection for diabetes mellitus as a chronic disease presumed to have been incurred in service.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  In this regard, the Board notes that the earliest contemporary evidence of diabetes is in the year 2000.  The Board does not find persuasive the Veteran's arguments that he did not actually seek treatment for diabetes for 30 years (from the putative initial diagnosis in 1970 to actual contemporaneous evidence of diabetes in 2000) because of alcohol abuse.  Indeed, any alcohol abuse would have exacerbated any co-existing diabetes and this, in turn, would have absolutely necessitated his need to receive treatment for diabetes.  The Board is likewise not persuaded by the vague allegation that a psychiatric disability in some unspecified manner prevented the Veteran from seeking treatment for diabetes.  

The Board also points out that the passage of many years-here, three decades-between discharge from active service and the medical documentation of the claimed diabetes is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992).

Further, there is no medical evidence or opinion whatsoever linking the diabetes, diagnosed many years post-service, to service or any incident thereof, to include alleged Agent Orange exposure therein.  Moreover, on these facts, no examination of the Veteran or other means of obtaining a medical opinion on this point is required.  

Generally, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Here, the Veteran has demonstrated that he currently has diabetes mellitus II, but there simply is no competent, probative evidence to evidence to indicate that this disability, manifested decades after service, may be associated with an event, injury, or disease in service-in particular, Agent Orange exposure, as alleged.  Absent evidence to support a finding of presumed or actual herbicides exposure during service, remanding this matter to obtain an opinion as to the etiology of the Veteran's diabetes mellitus would, in essence, place the examining physician in the role of a fact finder, which is the responsibility of the Board.  In other words, any medical opinion which provided a nexus between the disability at issue and service would necessarily be based solely on the Veteran's current uncorroborated assertions regarding what occurred in service which has been advanced in support of the claim.  The Court has held on a number of occasions that a medical opinion premised on an unsubstantiated account of a claimant is of no probative value.  See, e.g. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458,461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected).

Simply stated, remand of the claim for an examination or otherwise obtain a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim."  See, e.g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); 38 U.S.C.A. § 5103(a)(2) (West 2002 & Supp. 2012).  Therefore, VA has no obligation to obtain a VA examination or medical opinion commenting upon the etiology of the disability at issue.  .

As a final point, insofar as the Veteran and/or his representative assert that the Veteran's Type II diabetes mellitus is related to his service, such assertions provide no persuasive support for the claim. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the specific matter of whether the Veteran's type II diabetes mellitus is medically related to service falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer).  As laypersons not shown to have appropriate medical training and expertise, neither the Veteran nor his representative is competent to offer an opinion on the etiology of the Veteran's type II Type II diabetes mellitus. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Hence, the lay assertions in this regard have no probative value.

For all the foregoing reasons, the Board finds that the claim for service connection for Type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure, must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as no competent, probative evidence supports the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 at 53-56.


ORDER

Service connection for diabetes mellitus, type II, to include as due to as due to herbicide (Agent Orange) exposure is denied.  


REMAND

As for psychiatric disability, the Veteran testified that during Thanksgiving in 1967, while on a pass, he went to a bar in Fairbanks, Alaska, and got into an argument with another patron.  His friend, (as transcribed) [redacted] (actually [redacted]), who had been discharged from military service only 6 months earlier, was the bar tender and broke up the scuffle.  Later, Mr. [redacted] walked the Veteran out of the bar, where upon the patron with whom the Veteran had scuffled shot Mr. [redacted] in the head, killing Mr. [redacted].  Allegedly, the Veteran believed that the shot was intended for him, and not Mr. [redacted].  He has asserted that, thereafter, he was ostracized by other service members because they felt he was at fault for the death of Mr. [redacted].  Thus, the Veteran requested a transfer to Vietnam but his request was denied.  He could not recall if he had had any psychiatric treatment or evaluations during military service.  

The service representative stated that VA attempts at this stressor verification were insufficient.  It was noted that the Department of Defense had been contacted but had no information, because at his reported death Mr. [redacted] would have been a civilian.  Also, the Fairbanks Police Department had no information.  It was requested that attempts be made to verify the existence of [redacted] by possibly obtaining copies of the payroll records, where Mr. [redacted] had worked as a bartender at the local noncommissioned officers (NCO) club.  It was also asked that steps be taken to verify the military service of [redacted] in Fairbanks, Alaska.  As to the latter, the Board notes that prior attempts to obtain information yielded a March 2012 response from the Defense Personnel Records Information Retrieval System (DPRIS) that for an adequate request the Joint Service Research and Records Center (JSRRC) had to know the unit designation down to the lowest possible level and the most specific dates(s) of any incident.  Thus, the Veteran should be contacted to obtain such information.  

The Veteran testified that he had abused alcohol and drugs after service but had been clean since 2004.  At some time after service (he did not testify as to when), he had sought psychiatric treatment at the Madden Mental Health Clinic, (as transcribed) the Woodline (actually Woodlawn) Mental Health Center, and the Jackson Park Mental Health Clinic.  He further testified that he continued to see in his mind the flash of the gunshot that killed Mr. [redacted].  He was willing to report for a VA psychiatric examination, if requested to do so.  Also, his wife had submitted a supporting statement.  

The service records on file include a January 1968 request for transfer of the Veteran to the Republic of Vietnam.  However, it is conceded that he never actually served in Vietnam or was otherwise in combat or a combat zone, he was not a prisoner-of-war, and the stressor is not related to hostile military or terrorist activity.  Thus, given the nature of his alleged stressor, there must be corroborating evidence of the putative stressor in this case.   38 C.F.R. § 3.304(f) (2012).  

The record shows that the RO has made repeated attempts to confirm the death of [redacted] but such attempts have been unsuccessful.  

The Veteran has stated that a "Lewis Taylor" served with the Veteran and would have information corroborating the Veteran's history.  However, the record shows that attempts to locate a "Lewis Taylor" that served with the Veteran, and assuming he now resided in the Chicago area, were not successful.  The Veteran is hereby informed that neither the Army nor VA keeps track of the whereabouts of all those who served in the armed forces.  Thus, it is incumbent upon the Veteran to provide as much information as he can as to the current whereabouts of any fellow soldiers that may corroborate his history.  

Also, as to the reasons the Veteran had not sought post-service treatment for diabetes and psychiatric disability until he went to VA in 2000, i. e., his post-service abuse of alcohol and drugs, his psychiatric problems, and being unaware that he could receive free VA treatment, the June 2008 VA examiner noted that he had been employed driving a tractor trailer for 24 years but not since 1996.  

Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). 

Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012).

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the expanded claim remaining on appeal.  

Accordingly, this matter is hereby REMANDED for the following action:

1.  Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable the obtaining of any additional evidence pertinent to the claim on appeal that is not currently of record.  Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private records.  

In the letter, request that, if possible, the Veteran locate his former service comrade, Lewis Taylor, and obtain from him a statement corroborating the occurrence of his alleged stressor (the murder he alleges he witnessed) or provide that information to VA so that any appropriate further action in this regard can be taken. 

Request that the Veteran provide as much detailed information pertaining to [redacted] as possible relative to the military service of Mr. [redacted], to include the unit designation(s) of Mr. [redacted] down to the lowest possible level and the most specific dates(s) of Mr. [redacted]'s service; and also as much detailed information concerning any employment of Mr. [redacted] at the at the local noncommissioned officers (NCO) club, to include inclusive dates of employment.  

Request that the Veteran provide the information as to the full and correct names, inclusive dates as well as the addresses of all private medical facilities at which he received psychiatric treatment after service.  Request that he execute and return the needed authorization forms to obtain those records, to include from the Madden Mental Health Clinic, the Woodlawn Mental Health Clinic, and the Jackson Park Mental Health Clinic.  

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 

2.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claim file.  If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken, if any.  

3.  Take appropriate steps to determine whether it is possible to locate the payroll records of the NCO club in Fairbanks, Alaska, for the year 1967 to determine if a "[redacted]" was employed as a civilian at that facility.  If so, the appropriate steps should be taken to determine if a "[redacted]" was so employed in November 1967.  If not, the steps taken in this matter should be recorded and placed in the record.  

Also, take the appropriate steps to determine if it is possible to verify that a "[redacted]" was on active duty in the Army in Fairbanks, Alaska, at some period six months or more prior to November 1967.  If necessary, the Veteran should be contacted to provide any additional information required for this purpose.  


4.  After all records and/or responses from each contacted entity are associated with claim file, or a reasonable time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo VA psychiatric examination by an appropriate physician.  

The entire claims file, to include a complete copy of this REMAND, along with copies of any relevant Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented history and assertions.  Any indicated tests and studies should be conducted, with all results furnished to the examining physician prior to the completion of his or her report. 

The examiner should clearly indicate all current psychiatric disability(ies), to include PTSD, a depressive disorder, and schizoaffective disorder.  

Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service.  

With respect to any diagnosed PTSD, an opinion must also be rendered whether any confirmed stressor, i.e., having witnessed a murder, is sufficient to have caused PTSD.  

In rendering the requested opinion(s), the examiner should consider and discuss all pertinent in- and post-service evidence and lay assertions.  The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his assertions in this regard should be considered in formulating the requested opinion. 

All conclusions reached by the examiner must be supported by complete, clearly-stated rationale. 

5.  If the Veteran fails to report to the scheduled examination obtain and associate with the claim file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 

6.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  Stegall v. West, 11 Vet. App. 268 (1998).  

7.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority.  

8.  If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claim file is returned to the Board for further appellate consideration.  

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).  

This REMAND 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).  



______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs