Citation Nr: 1617172 Decision Date: 04/29/16 Archive Date: 05/04/16 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 H. Papavizas, Associate Counsel INTRODUCTION The Veteran 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 Veteran perfected an appeal via his submission of a timely VA Form 9 in April 2010. On his VA Form 9, he indicated that he wished to attend a Board videoconference in connection with his appeal. Later that month, however, he 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 Veteran'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). In October 2013, the Board remanded the instant claim for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As explained previously, the Veteran contends that he developed PTSD as a result of being assaulted during active duty. Specifically, he recalls that sometime between January 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. Most recently, in February 2014, the Veteran explained that he was attacked by "Specialist 4 Morgan," when they both served in the First Battalion Ninety Second Armored Division in Fort Hood, Texas. The Veteran also has alleged that Specialist 4 Morgan served time in the stockade for the attack, while the Veteran received no discipline for this incident. In October 2013, the Board remanded the appeal to attempt to obtain treatment records from the Darnall Army Medical Center. Previously, the AOJ had undertaken substantial efforts to obtain clinical records from the Darnall Army Medical Center, including any records documenting treatment following the alleged assault. However, the facility has repeatedly and unambiguously responded that a search of their files showed that they have no records pertaining to the appellant corresponding to the period from January 1975 to December 1975. The Board thus determined that further requests to the facility would be futile but found that other avenues to obtain such records had not been satisfactorily pursued. Specifically, the Board noted that the record showed that the Veteran had been transferred to an Army Reserve unit (Company B 980 Engineering Battalion, 2819 D West 4th Street, Lubbock, Texas) and that his records were forwarded to that unit after his discharge from active duty. See e.g. January 1980 VA Form 07-3101 (reflecting a February 5, 1980 Adjutant General notation that the Veteran "is assigned to a USAR unit. The attached inquiry should be forwarded to the unit of assignment for the requested information.") Accordingly, because no efforts had been made by the RO to obtain those records, the Board's remand directed the AOJ to make efforts to locate any additional records which may be located with the reserve unit. See February 2008 RO Deferred Rating (finding that no request to the Veteran's reserve unity for service-related records had yet been made). In December 2013, the RO issued three Personnel Information Exchange System requests (PIES), utilizing request codes M01 (service medical and dental records), O19 (personnel records, including unit assignment, combat, etc.), and M050 (complete service medical and personnel). In January 2014, the RO received various service personnel records, none of which appear to contain information corroborating the Veteran's alleged in-service personal assault. However, the record is devoid of any effort by the RO to contact the Veteran's former reserve unit to locate any additional records. Accordingly, remand is needed so that the RO can complete the requested development. While on remand, the Board further finds that other avenues to locate the Veteran's service records are available and should be pursued. Accordingly, the AOJ should also submit another PIES request for code O18 for PTSD cases based specifically allegations of personal assault. Additionally, the AOJ should also send a request to the U.S. Army Criminal Investigation Command (for any police or investigation reports into the alleged assault) and the U.S. Army Legal Services Agency (for any records of General or Special Courts-Martial undertaken in the prosecution of the alleged perpetrator), as the Veteran has alleged that his attacker, Specialist 4 Morgan, was required to serve time in the stockade for assaulting the Veteran during the attack that took place between January 1975 and September 1975. The Board's October 2013 Remand also required the AOJ to provide the Veteran with proper notice for his PTSD claim. Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) medical evidence of a link between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2015). VA recognizes that, because a personal assault is a personal and sensitive issue, many incidents are not officially reported, which in turn creates a proof problem in establishing they did. It is not unusual for there to be an absence of service records documenting the events the Veteran has alleged. Therefore, evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999). Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). Additionally, evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. In February 2014, the AOJ sent the Veteran a letter which informed the Veteran that he could "submit statements from individuals having knowledge of your claimed condition. These individuals should tell us what they observed of your condition, including the approximate dates, places and circumstances. They should clearly state whether they actually witnessed the event leading to your condition. If they were in service with you, they should include name, rank, and unit of assignment. All statements must have the following certification: 'I hereby certify that this information is true and correct to the best of my knowledge and belief.'" The letter also notified the Veteran that he could submit medical records from his treating physicians. Because the Board finds that the AOJ's February 2014 letter failed to properly notify the Veteran of all of the various different ways he could corroborate his allegation of personal assault, as delineated in § 3.304(f)(5), the Veteran should be provided with full appropriate notice, while the appeal is on remand. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with legally adequate notice of what is needed to support a claim for service connection for PTSD based on in-service personal assault under 38 C.F.R. § 3.304(f)(5). He should thereafter be allowed the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 2. Undertake the necessary efforts to obtain the Veteran's complete service treatment and personnel records from the service department, to include the National Personnel Records Center (NPRC), the U.S. Army and Joint Service Records Research Center (JSRRC), or any other appropriate repository of records, as necessary. Such efforts must include contacting the Veteran's former reserve unit. With respect to another PIES request, the AOJ should submit a PIES request for code O18, for PTSD cases based on in-service personal assault. Additionally, request any records related to an assault involving Specialist 4 Morgan or the Veteran that occurred between January 1975 and September 1975 from the U.S. Army Criminal Investigation Command, U.S. Army Legal Services Agency, or any other appropriate service agency. If the efforts undertaken to locate these records are unsuccessful, 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 AOJ should also compliance with the provisions of 38 C.F.R. § 3.159(e) by providing the Veteran 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, 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 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 2014). _________________________________________________ WAYNE M. BRAEUER 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) (2015).