Citation Nr: 1534047 Decision Date: 08/10/15 Archive Date: 08/20/15 DOCKET NO. 08-10 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder (to include adjustment disorder, anxiety, and depression), other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Giannecchini INTRODUCTION The Veteran had active military service from December 1976 to December 1979. The present matters come to the Board of Veterans' Appeals (Board) on appeal following a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction of the Veteran's claims folders currently resides with the RO in Waco, Texas. The Veteran testified before the undersigned acting Veterans Law Judge during a Travel Board hearing in October 2012. In January 2013, the Board remanded the Veteran's claims for additional development. Thereafter, the RO issued a supplemental statement of the case (SSOC) in March 2013. The appeal was recertified to the Board and received in March 2013. By way of history, the Veteran was denied service connection for PTSD in the above noted September 2006 rating decision. The Veteran has perfected an appeal of that issue. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a claimant cannot be held to a hypothesized diagnosis-one he or she is incompetent to render-when determining what his or her actual claim may be. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Said another way, Clemons stands for the proposition that a claim for service connection cannot be denied simply because a lay claimant is mistaken in his diagnosis but evidence exists of alternative conditions that fall within the scope of the claim. As a result of the Court's holding in Clemons, the Board is required to consider alternative current conditions within the scope of the filed claim and/or broadly construe claims. In the present case, the RO considered and denied the Veteran's claim of service connection for depression in December 2008 and again, upon reconsideration, in October 2009. A review of the record does not reflect that the Veteran filed a notice of disagreement (NOD) with the denial of this claim. Therefore, it would appear that a psychiatric disorder associated with depression is not for consideration in the current appeal. See Clemons, 23 Vet. App. at 6-9 (the scope of a claim may differ depending on whether there is a final agency decision denying a claim based on a particular diagnosis, or whether the breadth of the claim is being assessed during its initial processing). Nonetheless, during the October 2012 Board hearing, the undersigned accepted that depression fell under the Clemons umbrella, notwithstanding the previous final decision. As such, a psychiatric disorder associated with depression is to be considered in the current appeal. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In its January 2013 remand instructions, the Board requested that the AOJ obtain the Veteran's Social Security Administration (SSA) records associated with his grant of SSA disability benefits. Those records have been received and associated with the claims folders. Otherwise, further review of the claims folders reflects that during his October 2012 hearing before the undersigned, the Veteran testified that he had been treated in the early 1990s for depression at the VA outpatient clinic (VAOPC) in Corpus Christi, Texas, and that he had received medication for his symptoms. Documents associated with the Veteran's SSA records reflect his working in Corpus Christi from January 1981 to March 1986 and also from April 1991 to September 1995. The Veteran's available VA treatment records are dated no earlier than January 1999. Of note, the Veteran's treatment in January 1999 was at the Audie L. Murphy Memorial VA Medical Center in San Antonio, Texas. In light of the Veteran's testimony identifying VA treatment for depression in the early 1990s, as well as the fact that any VA mental health treatment records obtain could possibly provide relevant evidence in support of the Veteran's pending claims on appeal, an additional remand is necessary to allow for a request of any treatment records from the VAOPC Corpus Christi dated from 1990 to 1999. Any response from the VAOPC Corpus Christi should also include a comment concerning a search of any retired/archived records or that no retired/archived records exist. Furthermore, with respect to the Veteran's claim of service connection for PTSD, in a September 2007 VA psychology consult, the Veteran was diagnosed with PTSD based on the clinician's acceptance of two alleged service stressors. First, the Veteran alleges that he was the recipient of an army "blanket party" during basic training. He reported the "blanket party" consisted of unit members pinning him to his bunk with a blanket and then striking him with bars of soap held in socks. (Parenthetically, a "blanket party" has been described in literature as a form of corporal punishment or hazing). Second, the Veteran alleges that he witnessed a tank run off the side of a mountain during his military training in Hawaii. He has reported that everyone in the tank was killed and that this was very upsetting to him. The Board notes that the tank accident stressor does not appear to have been directly reported to the RO. In a June 2008 letter, the Veteran was notified by the RO that the stressor information he had submitted regarding the "blanket party" was not sufficient to allow for verification through the Joint Services Records Research Center (JSRRC). In the statement, the RO invited the Veteran to submit a buddy statement to help verify the "blanket party" as having occurred. No buddy statement is of record. The Board finds that the Veteran's reported experience associated with the "blanket party" could reasonably be described as a personal assault (i.e. covered with a blanket and struck multiple times with bars of soap in socks). Where a stressor involves a personal assault, VA has additional notice and development duties; in particular, notifying a claimant that records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, physicians, and other sources could help substantiate the claim. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. See 38 C.F.R. § 3.304(f)(5) (2014). In the present case, the March 2006 duty to assist letter for the claim of service connection for PTSD does not include any reference to alternative sources of information that could help in substantiating a claim of service connection related to a personal assault. The RO did, however, provide the applicable regulatory provision for personal assault in its March 2008 statement of the case (SOC). In so doing, the above examples of alternative sources of information were identified. Still, in light of the need to remand the Veteran's appeal to obtain VA treatment records from the VAOPC Corpus Christi, it would be helpful to the Board if the Veteran was provided additional notice specifically addressing a claim of PTSD based on personal assault consistent with 38 U.S.C.A.§ 5103 (West 2014) and 38 C.F.R. § 3.304(f)(5) (2014). (Parenthetically, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD. Specifically, the final rule amended 38 C.F.R. § 3.304(f), by redesignating paragraphs (f)(3), (f)(4), and (f)(5), respectively, and by adding a new paragraph (f)(3).) Finally, as the Veteran is alleging that he has PTSD as a result of the above noted tank accident in Hawaii, it would also be helpful to the Board if the Veteran was invited to submit verifying information concerning that incident. If any information is received that requires additional development, such should be undertaken. Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran with appropriate notice consistent with 38 U.S.C.A. § 5103 (West 2014) and 38 C.F.R. § 3.304(f)(5) (2014) concerning in-service personal assault claims. (Parenthetically, the Board notes that the Veteran's stressor statement regarding a "blanket party" during basic training and being pinned to his bunk and struck with bars of soap in socks could reasonably be described as a personal assault (i.e., force or violence to inflict a bodily hurt upon another). 2. Send the Veteran a stressor development letter based on his report that he witnessed a tank run off the side of a mountain during his training in Hawaii. He alleges that the crewmembers of the tank were killed and the incident was very disturbing to him. The Veteran should be asked to provide the date and place the incident occurred in Hawaii, his unit of assignment, and the names and other identifying information concerning any individuals involved in the event. Send the Veteran a VA Form 21-0781 (Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder) and request that he complete it with as much specificity as possible. Based on the Veteran's response, develop the claimed stressor and take any additional action as is warranted. 3. Request that the Veteran identify any private or VA treatment he may have received for any psychiatric problem or disorder. After obtaining the appropriate release of information forms where necessary, procure records of any treatment the Veteran has received, to include relevant records available through the CAPRI records system. Also, obtain any available VA treatment records from the VA outpatient clinic (VAOPC) in Corpus Christi, Texas, dated from 1990 to 1999. Any search must include a search of VAOPC Corpus Christi retired/archived records. If records from the VAOPC Corpus Christi VAOPC are unavailable, or the search for them otherwise yields negative results, this fact must be documented in the claims file. If any records identified by the Veteran, to include those from the VAOPC Corpus Christi, are not available, he should be notified of this fact in accordance with the provisions of 38 C.F.R. § 3.159(c)(2), (e)(1) (2014). 4. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Then, re-adjudicate the claims on appeal, as are listed on the title page of this Remand. In considering the Veteran's claims, the AOJ should address whether any alternative sources of evidence per 38 C.F.R. § 3.304(f)(5) supports that a personal assault (i.e., the alleged "blanket party") did occur. If any of the benefit sought is denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board for appellate review. 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 2014). _________________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).