Citation Nr: 1803198 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-17 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which determined that new and material evidence had not been received in order to reopen a previously denied claim for service connection for PTSD. However, in addition to PTSD, the record also shows diagnoses of adjustment disorder and major depressive disorder. Therefore, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to recharacterized the claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2017). Therefore, the Board may properly consider all of the evidence of record. Additionally, during the April 2017 Board hearing, the undersigned granted the Veteran's request to hold the record open for a period of 60 days for the submission of additional evidence. Thereafter, in May 2017, the Veteran, through his representative, submitted additional evidence. This new evidence is subject to initial review by the Board because the Veteran filed his substantive appeal in May 2014, which was after February 2, 2013, when the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 became effective, and he has not requested that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C.A. § 7105(e)(1) (West 2014)); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. Furthermore, with regard to the characterization of the Veteran's claim as reflected on the title page of this decision, the Board observes that the RO originally denied service connection for PTSD in a rating decision issued in August 2006. At such time, the Veteran's complete military personnel records were unavailable. Thereafter, in May 2017, the Veteran's May 1973 deck log that was completed during his military service was associated with the record. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). Here, as the newly received service record addresses the Veteran's reported in-service PTSD stressor, the Board finds that 38 C.F.R. § 3.156(c) is applicable and his original claim is reviewed on a de novo basis. Consequently, it has been characterized as shown on the title page of this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran 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. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran claims that he developed PTSD due to racial tension experiences in service, to include a 1973 race riot that occurred in the small galley aboard the U.S.S. Coral Sea, and his involvement in an on-shore altercation in 1973. In this regard, in written correspondences dated in August and December 2005, and May 2011; and during his April 2017 Board hearing, the Veteran reported that, when the riot occurred, the Marines were instructed to mediate the situation. He further reported that he witnessed a Marine running towards the small galley with a machine gun; and that everyone was ordered to their general quarters for approximately four hours. Additionally, the Veteran indicated that while aboard the ship he received constant threats and was involved in altercations as racial tensions were heightened during this period of time, and that he always went to the dining facility with another individual as getting into an altercation was highly probable. He further indicated that while on shore in Subic Bay, Philippines, he and a few fellow service members were involved in an altercation with the natives due to racial tensions. In regard to verification of the Veteran's above-claimed PTSD stressor, the Board notes that the Joint Services Records Research Center (JSRRC) Coordinator made formal findings in July 2006 and June 2011 that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the JSRRC and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. However, the Board observes that there are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran's service records which may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). The Veterans Benefits Administration (VBA) Manual (M21-1) also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. VBA Manual M21-1, IV.iv.4.H.4.c. In the instant case, the Board finds that the evidence of record is sufficient to corroborate the Veteran's in-service personal assault stressor, which included physical assaults and threats. As discussed above, there is a reduced evidentiary burden concerning PTSD stressors based upon personal assaults. In this regard, coinciding with the Veteran's April 2017 Board hearing testimony, his May 1973 deck log indicates that a message was received from the ship's Master-At-Arms of a disturbance on the mess decks. Such record further indicates that alarms for general quarters were sounded as a measure to preclude the possibility of potential violence at the mess decks. Additionally, in June 2014, a buddy statement was received from J.N., a fellow service member, in which he reported that the Veteran had been getting worse in regards to him being able to control his temper; and that the Veteran had no tolerance for individuals of the Asian descent. Furthermore, in November 2016, a buddy statement was received from R.N., a fellow service member, in which he reported that he recalled two incidents which occurred aboard the U.S.S. Coral Sea. As to the first incident, R.N. explained that when he was waiting in line on the mess deck to go into the diner for food, a member of the ship's Master-At-Arms detail announced that the diner was closed and ordered everyone to go back to the general quarters. He further explained that the ships' Executive Officer announced over the loud speaker system that "THIS IS NOT A DRILL," which frightened everyone. R.N. noted that after being held in their general quarters for approximately 5-6 hours, the Executive Officer announced over the loud speaker system that there had been a disagreement amongst some of the ship's company. He further noted that he was told by his shipmates that supposedly, a group of African American sailors armed with wrenches had entered the diner and began indiscriminate attacks on Caucasian sailors who were seated, eating their meals. R.N. indicated that following such incident, there was an ongoing animosity between the African American and Caucasian sailors and tensions ran very high; and that he and other Caucasian sailors started hanging around in groups for fear of being accosted by a group of African American shipmates. As to the second incident, R.N. explained that while he was on shore patrol, the ship's Officer of the Deck advised him that the African American and Caucasian sailors were getting involved in numerous fights while on patrol. He further explained that as a result, he was issued a brassard, a web belt, and a night stick; and instructed to maintain order. R.N. concluded that such incidents demonstrated the air of distrust and disdain between the African American and Caucasian sailors onboard the U.S.S. Coral Sea. Based upon this evidence, the Veteran's personal assault stressor is confirmed. However, there is conflicting evidence of record with respect to whether the Veteran meets the DSM-IV or DSM-5 diagnostic criteria for PTSD based on such stressor. On VA examination in January 2014, the examiner diagnosed adjustment disorder. However, she found that the Veteran did not meet the full criteria for PTSD as the Veteran's personal assault stressor had not been confirmed by the Joint Services Records Research Center (JSRRC), and she could find no evidence in the Veteran's treatment records to confirm his reported incidents. The examiner further reported that the Veteran's adjustment disorder was related to the progression of his medical conditions; his chronic pain (shoulder and hand injury); and his work stress (changes in management), which lead to his retirement in September 2012. While such opinion adequately addresses the etiology of the Veteran's adjustment disorder, the VA examiner did not consider or address the Veteran's prior diagnosis of major depressive disorder; and there remains a question as to whether he has PTSD related to his military service. In this regard, VA treatment records dated from 2010 to 2016 reflect an assessment of major depressive disorder and an assessment of PTSD. Regarding PTSD, such records do not specify the extent to which each DSM criterion are met. Moreover, while a March 2014 private treatment letter prepared by T.S., MSW indicates a diagnosis of PTSD, chronic, mild to moderate, such diagnosis is not supported. T.S., MSW did not provide how the Veteran's PTSD diagnosis conformed to the DSM criterion. However, a competent diagnosis of PTSD is now of record. In this regard, the Veteran submitted a September 2014 private treatment letter prepared by Dr. C.S., which indicated that after an assessment (in which Dr. C.S. explained how the Veteran met each PTSD criterion), the Veteran met the criteria for PTSD under both the DSM-IV and DSM-5 diagnostic codes. After describing the Veteran's in-service racial tension experiences, including the race riot aboard the U.S.S. Coral Sea and the on-shore altercation in Subic Bay, Philippines, Dr. C.S. opined that it was more likely than not that the Veteran had PTSD and such was caused in service and was related to his fear of hostile military or terrorist activity; and that his response to the event involved a psychological or psycho-physiological state of fear, helplessness, and horror. Here, although Dr. C.S. associates the Veteran's diagnosed PTSD to his military service, the Board finds that the Veteran's confirmed PTSD stressor does not relate to a fear of hostile military or terrorist activity as contemplated by the VA regulations. In this regard, the Federal Circuit has held "that § 3.304(f)(3) can apply only if a veteran's claimed in-service PTSD stressor relates to an event of circumstance ... that was perpetrated by a member of an enemy military or by a terrorist." Hall v. Shinseki, 717 F.3d 1369, 1372 (Fed. Cir. 2013). Notably, there is no evidence that the Veteran was ever under threat from enemy hostile military or terrorist activity; rather, the Veteran's confirmed stressor relates to his racially-involved altercations with his fellow service members and shore locals. Furthermore, VA regulations require that a VA or VA-contracted psychiatrist or psychologist confirm that the Veteran's fear of hostile military or terrorist activity related stressor is adequate to support a diagnosis of PTSD. 38 C.F.R. § 3.304(f)(3). Consequently, in light of the newly confirmed PTSD stressor and the conflicting evidence regarding whether the Veteran meets the diagnostic criteria for PTSD; and given that the January 2014 VA examiner did not consider or address the Veteran's major depressive disorder diagnoses of record, the Board finds that the Veteran should be afforded another VA examination so as to determine the nature and etiology of his claimed acquired psychiatric disorder. Furthermore, in the readjudication of the Veteran's claim, the AOJ should consider the entirety of the record, to include the evidence received since the April 2014 statement of the case. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his claimed acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. (A) The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the DSM-5 criteria. In this regard, the examiner should specifically address whether the Veteran has PTSD and/or major depressive disorder, as shown by the VA and private treatment records during the pendency of the claim. (B) The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and, if so, whether such diagnosis is the result of his claimed in-service personal assault stressor. In this regard, the examiner should consider conceded that the Veteran suffered from racial tension experiences in service, to include a 1973 race riot that occurred in the small galley aboard the U.S.S. Coral Sea, and was involved in an on-shore altercation in 1973. (C) For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service. The examiner's report must include a complete rationale for all opinions expressed. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the April 2014 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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. _________________________________________________ C. CRAWFORD 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).