Citation Nr: 1342842 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-31 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for posttraumatic stress syndrome (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. REMAND Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997); 38 C.F.R. § 3.304(f) (2013). Unless it is determined that a veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the Veteran's alleged stressor(s) generally must be established by official service records or other credible supporting evidence. Cohen, supra; 38 C.F.R. § 3.304(f). If the claimed non-combat stressor is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 C.F.R. § 3.304(f)(3). Initially, the Board notes that there is no evidence that the Veteran engaged in combat with an enemy force or that a claimed stressor involved fear of hostile military or terrorist activity. In fact, the Veteran himself has not made such an assertion. Rather, the Veteran has asserted that during basic training at Fort Knox, Kentucky, an incident occurred during which the soldier to his left during a smalls arms training was accidently shot by the solider to his left. The Veteran further alleged that while he while stationed in Germany sometime in 1975, he left the Grafenwoehr training area without permission and, as punishment for doing so, was required to fill in the potholes on one of the facility roads with dirt. The Veteran stated that while doing so, a truck pulling a water trailer (a "Water Buffalo") was hit with a short round 20 or 30 yards from where the Veteran and others were filling in the potholes. The Veteran alleged that the driver of the truck was killed during this incident. In June 2009, the agency of original jurisdiction (AOJ) attempted to verify the Veteran's first claimed stressor by requesting information from the US Army Crime Records Center, which Center responded by stating that they had no records to support the alleged incident. In September 2009, it was determined that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or to allow for a meaningful search of Marine Corps or National Archive and Records Administration (NARA). Reviewing the information provided by the Veteran, the Board finds the evidence to be sufficient to request verification from the JSRRC, at least with regard to the Veteran's first claimed stressor, such that a remand for further development is necessary. The Veteran alleged that the incident occurred during his period of basic training, which, according to his service personnel records, occurred from March 11, 1974, to May 12, 1974. Further, the Board finds that a smalls arms accident resulting in the death of a soldier during basic training would be significant enough of an incident that had it occurred, it would be documented in unit records. Moreover, although the AOJ attempted to verify the incident via the US Army Crime Records Center, the Veteran alleged that the incident was an accident. Thus, it would not appear as though the US Army Crime Records Center would indeed have records pertaining to the incident, as records housed by that facility are criminal investigative and military police reports. Regarding the incident alleged to have occurred in Germany, it is unclear whether the September 2009 memorandum pertains as well to this incident, as the specific stressors were not detailed in that memorandum. On remand, the Veteran should be afforded an additional opportunity to provide further information regarding this alleged stressor. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should contact the Veteran and request that he provide more specific details regarding the claimed stressor incident stated to have occurred in Germany. Dates, places, and units involved should be identified by the Veteran. He should be asked to describe the event(s) in detail and, to the best of his knowledge, should provide the AOJ with the full names and unit assignments of any person whose death he claims as a stressor. The Veteran should be afforded an appropriate amount of time to respond to the AOJ's request for information. 2. Then, AOJ should then determine whether the information is sufficient to request corroboration of the alleged stressor from the U.S. Army Joint Services Records Research Center (JSRRC) or other appropriate agency. If the Veteran provides additional information in regard to his claimed stressors, the AOJ should conduct additional development as necessary. If the information is determined to be insufficient to permit a meaningful search for records, a formal finding in this regard should be rendered and the Veteran should be notified of such. 3. The AOJ should then take the steps necessary to attempt to corroborate the Veteran's alleged stressor, stated to have occurred during basic training. Specifically, the AOJ should contact the JSRRC or other appropriate agency and ask for research of unit histories or other unit records, daily journals, operational reports, and casualty records for CO A 16th Bn, 4th BDE for the time period from March 11, 1974, to May 12, 1974, that might serve to independently verify the Veteran's alleged stressful experiences. If the search for corroborating information leads to negative results, this should be documented in the claims file. 4. If and only if either of the Veteran's alleged stressors are verified, schedule the Veteran for a VA examination in connection with his claim of service connection for PTSD. The Veteran's claims file must be made available to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. The examiner is asked to provide an opinion as to whether the Veteran has symptomatology that meets the diagnostic criteria for PTSD. The examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s). Specific consideration should be given to the PTSD diagnosis noted in the Veteran's VA treatment records. If the examiner's conclusions or opinions differ with any conclusions or opinion already of record, the rationale for these differences must be explained. A complete rationale must be provided for all opinions. 5. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by the AOJ. He has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Appeals (Court) 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). _________________________________________________ J. A. MARKEY 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 Court. 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).