Citation Nr: 1617905 Decision Date: 05/04/16 Archive Date: 05/13/16 DOCKET NO. 11-27 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), an adjustment disorder, and bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In March 2016, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. The psychiatric claim for service connection has been developed as a claim for PTSD, an adjustment disorder, and bipolar disorder. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claim has been recharacterized to include any psychiatric disorder. In a final July 1998 rating decision, the RO denied service connection for depression. The Board, however, does not construe the current appeal as an application to reopen a previously denied claim. A change in diagnosis or the specificity of the claim must be carefully considered in determining whether the claim is based on a distinct factual basis. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In Boggs, the United States Court of Appeals for the Federal Circuit found that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. In Velez v. Shinseki, 23 Vet. App. 199 (2009), the Court clarified that the focus of the analysis must be whether the evidence truly amounted to a new claim based upon a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter. Here, because the Board finds that the present claim turns upon a different history of in-service events, a different factual basis, and different diagnoses as were considered in the prior final rating decision of July 1998, this constitutes a new claim and new and material evidence is not required as a threshold matter. At the time of the July 1998 rating decision, essentially no facts surrounding the onset of the Veteran's depression were of record. By contrast, the present claim is predicated on particular in-service events causing diagnoses distinct from depression that were not previously considered. Moreover, as the record now contains a positive nexus opinion rendered by an August 2010 VA examiner, the claim would be reopened even if viewed as an application to reopen, resulting in the same procedural posture. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has alleged several specific in-service events as stressors that caused his current psychiatric disorders. See VBMS Entries February 17, 2011. An August 2010 VA examiner positively linked the Veteran's adjustment disorder with depressed and anxious symptoms to his claimed stressors. A July 2013 VA examiner provided a negative nexus opinion, but it is unclear whether that opinion would be different on corroboration of the stressors. The RO issued Formal Findings in March 2011 and May 2011 indicating the Veteran's stressors either contained insufficient information to warrant an inquiry to the Joint Services Records Research Center (JSRRC), or the JSRRC did not corroborate the stressors. As for the stressors that the JSRRC could not corroborate, the Veteran alleges that he witnessed the deaths of two friends following accidental injuries, one involving an ejection seat mishap and the other involving being sucked into a jet intake of a squadron S-3 Viking preparing to launch. In the RO's inquiry to the JSRRC, however, the RO supplied dates of the events that were either inconsistent with, or much narrower than, the two-month time frames supplied by the Veteran in his statements. The JSRRC stated it was unable to document the deaths for the time periods cited. Among the stressors containing insufficient information to warrant an inquiry, in February 2011, the Veteran alleged that while assigned to the Naval Auxiliary Landing Field at San Clemente Island, he was assigned to Wilson Cove Pier One and was involved in search and rescue for downed pilots and civilians with boat problems. He contends that in July or August of 1985, a Marine helicopter crashed in the ocean killing everyone on board, and the Veteran was part of the recovery operation. Personnel records corroborate his presence at San Clemente Island. It is unclear why a search for record of a Marine helicopter crash between July 1985 and August 1985 in this area could not be undertaken. The Formal Findings do not contain an explanation in this regard. Further attempts must be made to corroborate the Veteran's stressors. Additionally, on remand, the Veteran must be provided with VCAA notice regarding the methods for substantiating a psychiatric claim related to a personal assault stressor. He has not been previously supplied with this notice. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VCAA notice regarding the methods for substantiating a claim for PTSD related to a personal assault stressor. Notify the Veteran regarding the potential submission of alternative forms of evidence (evidence other than service records) to corroborate any account of an alleged in-service assault. A "special PTSD personal assault" notice and questionnaire may be sent to the Veteran to assist in identifying potential alternative sources of evidence to establish an in-service stressor. The Veteran should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals. The Veteran should also be notified that, alternatively, evidence of behavioral changes following the alleged in-service assault may constitute credible supporting evidence of the stressor under 38 C.F.R. § 3.304 (f)(5) (2015). Provide the Veteran with a reasonable amount of time to reply to this notice. 2. Contemporaneously with the effort in paragraph 1, contact the Veteran and ask if he has any further details regarding his alleged stressors. He should be advised to cooperate to the best of his ability with as much specific information as he can recall, as his responses will be used to research the occurrence of his claimed stressors. 3. Contact the Joint Services Records Research Center or other appropriate source to attempt to verify the Veteran's alleged stressors as described in his February 2011 and March 2016 statements, as well as in any newly received information he provides. The RO must ensure that corroboration is requested based on the dates provided by the Veteran. At present, he alleges that the jet intake accident occurred in either 9/79-10/79 or 10/80-1/81, the helicopter crash occurred in 7/85-8/85, and the ejection seat mishap occurred between either 4/82-7/82 or 6/81-7/81. The RO is advised that pursuant to Gagne v. McDonald, 27 Vet. App. 397 (2015), several sequential requests may be required until the entire period is covered. All responses received from JSRRC should be documented in the Veteran's claims file. 4. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence. If the benefit sought remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for a response. 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). _________________________________________________ M. TENNER 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).