Citation Nr: 1744729 Decision Date: 10/06/17 Archive Date: 10/17/17 DOCKET NO. 12-19 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Veteran is represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in April 2016, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a psychiatric disorder, which he asserts is related to several stressful events that occurred while serving in Vietnam. First, the Veteran reported being exposed to rocket attacks and mortar fire, including an incident in which a piece of shrapnel came through the wall where he was sleeping. Second, he described an incident in which a C-47 aircraft crashed approximately 100 feet away from him, killing the entire crew. Third, he described an incident in which an F-100 aircraft caught on fire while he was disengaging its cable. In an October 2015 written statement, the Veteran indicated that these stressful events occurred between May 1969 and August 1969 while he was stationed at Phu Cat Air Base. The Veteran also submitted a November 2013 opinion from a private psychologist who opined that the Veteran's anxiety disorder with posttraumatic stress disorder (PTSD) features and mood disorder with depressive features were more likely that not related to his traumatic experiences while serving in Vietnam. In April 2016, the Board remanded the Veteran's claim in order to attempt to verify through official sources the Veteran's claimed stressors. In a July 2016 correspondence, an archivist from the Air Force Historical Research Agency indicated that he was unable to verify the Veteran's claimed stressors. Specifically, he indicated that a search of the official casualty listings for 1969 revealed that of the four C-47s that were lost that year, only one, on October 8, 1969, was remotely close to Phu Cat Air Base. The archivist further indicated that there were no records of any explosive incidents involving an F-100 in 1969. A review of the record reveals that the dates reported in the Veteran's October 2015 written statement appear to be incorrect. During a November 2013 private psychological evaluation, the Veteran indicated that he arrived in Vietnam on Christmas Eve 1969 and left shortly before Christmas 1970 and that the claimed stressful events occurred about mid-way through his tour. The Veteran's service personnel records confirm that he arrived in Vietnam on December 24, 1969, and had one year of foreign service. Thus, the events describe in the Veteran's October 2015 written statement appear to have occurred in 1970, not 1969. As such, the Board finds that a remand is necessary in order to make another attempt to verify the Veteran's claimed in-service events within the correct timeframe. Additionally, in the April 2016 remand, the Board directed the AOJ to provide the Veteran with another VA examination and obtain a medical opinion as to whether any diagnosed psychiatric disability was related to service. In doing so, the Board directed the examiner to explain the reasoning for all opinions provided. In September 2016, the Veteran underwent another VA examination, during which he reported all of the aforementioned stressors. The examiner diagnosed the Veteran with unspecified depressive disorder and opined that that it was less likely than not caused by or related to service. The examiner noted that the Veteran reported the onset of relatively mild symptoms of depression several years after service secondary to situations at home, but did not otherwise provide a rationale to support the opinion. See 38 C.F.R. § 3.303(d) (2017) (service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service). As the Veteran's reported exposure to rocket and mortar fire while serving in Vietnam is consistent with his circumstances of service, the Board finds that a supplemental opinion should be obtained with respect to that claimed in-service event. See 38 U.S.C.A. § 1154(a) (West 2014); see also Stegall v. West, 11 Vet. App. 268 (1998). If either of the Veteran's other claimed in-service events are verified by the RO, supplemental opinions should also be obtained with respect to each verified event. Finally, a March 2008 private treatment record indicates that the Veteran had an appointment for psychiatric services at the VA on March 26, 2008. The following month, the Veteran's private treatment provider indicated that he tried working through the Veteran's post-war nightmares and flashbacks with him, but just discussing it seemed to create more anxiety for the Veteran. The private treatment provider encouraged the Veteran to go back to the VA and get the specialty care he needed. On remand, the RO should ask the Veteran to clarify whether he received mental health treatment from the VA in March 2008, and if so, obtain all records of such treatment. See 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to clarify whether he received mental health treatment from a VA facility in March 2008, and if so, identify the location of such treatment. The RO should obtain all VA treatment records not already associated with the claims file. 2. Attempt to verify through official sources that a C-47 aircraft crashed into a runway barrier on landing between May and August 1970 in Phu Cat, Vietnam, and that an F-100 caught fire while maintenance was being performed between December May and August 1970 in Phu Cat, Vietnam. 3. After the above has been completed to the extent possible and relevant records are associated with the claims file, the AOJ should return the claims file to the examiner who conducted the September 2016 VA examination in order to obtain a supplemental opinion. If the September 2016 VA examination is not available, provide the claims file to another appropriate examiner. If an examination is deemed necessary to respond the question, one should be scheduled. After a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that any diagnosed psychiatric disorder is related to service. The examiner's opinion should reflect consideration of the Veteran's reported exposure to mortar and rocket fire in Vietnam and any other stressful events verified by the AOJ. A complete rationale for all opinions must be provided. 4. After undertaking the development above and any additional development deemed necessary, the Veteran's claim for service connection for a psychiatric disability should be readjudicated. If the benefit sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. A. BANFIELD 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) (2017).