Citation Nr: 1804053 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 15-45 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a disability of the right foot. 2. Entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from June 1950 to May 1951. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in June 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran appeared at a hearing before a Decision Review Officer at the RO. A transcript of that hearing is in the claims file. 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 right foot disability and for an acquired psychiatric disability which he attributes to specific events which occurred in service. The Veteran's service treatment records and service personnel records are unavailable and are presumed to have been destroyed in the 1973 fire at the National Personnel Records Center (NPRC). (See VA 21-3101, 05/09/2013.) As such, VA has a heightened duty to assist the Veteran in obtaining evidence which may help to substantiate the claim. The Veteran has described an injury to his right foot resulting from a 55 gallon drum of garbage falling on his foot while he was working as part of his time in the stockade. (See Correspondence, 01/22/2013.) The Veteran has also described an incident while he was in the stockade in which a fellow prisoner was killed after falling off the catwalk to the floor below. The Veteran's DD Form 214 shows that he had 178 days of lost time, which would support his testimony that he was in the stockade. (See DD 214, 01/20/1955.) However, no effort has been made to obtain any relevant records related to the Veteran's time in the stockade or to otherwise verify the events described by the Veteran, despite the DRO hearing having elicited multiple details which might be verifiable. Specifically, the DRO hearing determined that the Veteran was in the stockade at Fort Riley Kansas in November 1950 and that was the approximate time in which the fellow inmate, possibly named Green, was killed. (See Hearing Testimony, 07/07/2015, p. 23.) The injury to his foot was the result of an icy surface and likely also occurred in November or December 1950. The DD Form 214 shows that the Veteran had just less than 6 months of lost time. Thus, attempts should be made to obtain any records related to the stockade at Fort Riley Kansas for the period of June to December 1950 which would show the Veteran's confinement and/or the death of an inmate from a fall. The United States Court of Appeals for Veterans Claims (Court) has held that sequential JSRRC requests must be made until the entire time the Veteran has provided has been covered. Gagne v. McDonald, 27 Vet. App. 397 (2015). VA treatment records show a diagnosis of degenerative joint disease in the Veteran's right foot and bunions for which he was prescribed extra-deep footwear. (See CAPRI, 06/16/2013, p. 17.) Treatment records also show that the Veteran has been diagnosed with Major Depressive Disorder and Generalized Anxiety Disorder; at the mental health treatment session he provided a history of trauma in service and continuity of symptoms since service. (See CAPRI, 06/16/2013, p. 39.) The Veteran has specified that he is seeking service connection for PTSD. However, the Board notes that the requirements for service connection for PTSD include the element of a verifiable event in service which is not required for service connection for other acquired psychiatric disabilities. The record shows that the Veteran has not been afforded a VA examination with respect to either of his claimed disabilities. Under 38 C.F.R. § 3.159(c)(4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In light of the VA treatment records referenced above and the discussion of lost time in the DD 214 in addition to the heightened duty to assist, the Board finds that the low threshold standard of McLendon is met. Thus, on remand, efforts should be made to obtain any relevant records pertaining to the Veteran's time in the Fort Riley, Kansas stockade between approximately June 1950 and December 1950. After such efforts have been exhausted, the Veteran should be provided with VA examinations to address the Veteran's claimed disabilities and whether they were at least as likely as not incurred in service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request any relevant records from the appropriate federal records custodian which pertain to the Veteran's confinement at the Fort Riley, Kansas, stockade between approximately June 1950 and December 1950. This should include records from the military police authorities, the units to which the Veteran was assigned, the units assigned to supervise the stockade, and any other records which might have relevant information. As many attempts as necessary should be made, to include the submission of multiple 60 day periods for search criteria. If, after all due diligence, it is determined that any of the records are unavailable or further efforts to obtain them would be futile, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e). 2. Once the records have been obtained or further search has been determined to be futile, the Veteran should be scheduled for appropriate VA examinations with respect to the disabilities on appeal. Specifically, with respect to the Veteran's claimed right foot disability, the VA examination should address whether it is at least as likely as not (probability 50 percent or greater) that the Veteran has a current disability which was incurred in service. The examination should include a review of the Veteran's lay history of the injury and provision of an X-ray to determine the nature of the disability. The examiner should specifically address whether the mechanism of injury described by the Veteran is consistent with the nature of the current disability. With respect to the Veteran's claimed acquired psychiatric disability, the VA examination should address whether it is at least as likely as not (probability 50 percent or greater) that the Veteran has a current disability which was incurred in or otherwise the result of service. The examination should include a review of the Veteran's lay history and a discussion of whether the Veteran's accounts of the incidents described in service are sufficient to support diagnoses of depression, anxiety, or PTSD. The examiner should also address the Veteran's discussion of symptom continuity. Rationale or the underlying reasons for any opinion provided should be included in the VA examination reports. 3. Then readjudicate the issues on appeal. If any of the benefits sought on appeal are not granted in full, then issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ Eric S. Leboff 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) (2016).