Citation Nr: 1803147 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 07-15 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kimberly R. Dodson, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This claim was remanded in December 2010. In August 2015, a hearing was held before the undersigned Veterans Law Judge. In December 2015, the Board denied entitlement to compensation under 38 U.S.C. § 1151 (2012) for a right arm disability. The Board remanded the claim of entitlement to service connection for posttraumatic stress disorder for additional development. The issue of entitlement to an evaluation in excess of 10 percent for follicular conjunctivitis was also remanded so that a statement of the case could be furnished. This was accomplished in April 2016, but the Veteran did not submit a timely VA Form 9 and the issue is not for consideration. 38 U.S.C. § 7105 (2012). This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. 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 entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. On review, additional development is needed. See 38 C.F.R. § 3.159(c) (2017). In support of his claim of entitlement to service connection for posttraumatic stress disorder the Veteran reported stressors that he asserts occurred during his period of basic training at Fort Benning, Georgia. In June 2011, VA requested morning reports for the Veteran's unit for the period from August to October 1968 containing remarks regarding a soldier who purportedly was shot during a live fire accident. The July 2011 response states that the allegation had been investigated but they could not identify the Fort where basic combat training was conducted based on the information furnished. In December 2015, the Board directed that an additional morning reports search should be requested and all necessary information to conduct the search should be provided. In May 2016, the RO submitted another request asking for a search of morning reports for Company A, Third Battalion, First Training Brigade from August 1968 to October 1968 containing remarks regarding if a service member was killed during basic training. Response received in June 2017 indicates that the allegation had been investigated and no search was possible without the service member's name and/or service number. The Board acknowledges the response received and that the Veteran is unable to recall the full identify the service member. Notwithstanding, the May 2016 request did not address the deficiencies in the 2011 request as directed. That is, it did not identify the location where the appellant's basic combat training occurred as previously requested by the Army. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Finally, the Veteran is represented by a private attorney and review of the file indicates that recent correspondence to the attorney was returned to sender. On remand, the attorney's current address should be verified and copies of pertinent documents should be resent. Accordingly, the case is REMANDED for the following action: 1. Request any morning reports pertaining to the Veteran's claimed stressor, i.e., that a fellow soldier was killed during basic training at Fort Benning, Georgia. It should be noted that the Veteran's unit at that time was Company A, Third Battalion, First Training Brigade, and the applicable time period is August to October 1968. All responses received must be associated with the claims folder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. If and only if a cited stressor event is verified, the Veteran should be afforded a VA examination by a psychiatrist or psychologist. The Veteran's electronic claims folder must be available for review. The examiner must address the following: (a) Identify, by medical diagnosis, each psychiatric disability entity found pursuant to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). (b) Opine whether the Veteran has posttraumatic stress disorder based on any corroborated inservice stressor event. If posttraumatic stress disorder is not diagnosed, but a stressor event is found to be verified, the examiner must explain why the Veteran does not meet the criteria for such diagnosis. (c) For any other psychiatric diagnosis pursuant to DSM-IV, provide an opinion addressing whether it is at least as likely as not that any such diagnosis is related in any way to the Veteran's active duty service. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. If an examination is scheduled, the Veteran is to be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, corrective procedures should be implemented. 5. Verify the current mailing address for the Veteran's attorney. Thereafter, send her copies of the October 2017 supplemental statement of the case as well as the November 2017 letter providing notification that the appeal was being returned to the Board. 6. Upon completion of the requested development, readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity for 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).