Citation Nr: 1819352 Decision Date: 04/03/18 Archive Date: 04/12/18 DOCKET NO. 12-20 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1999. This matter comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta Georgia. In that decision, the RO denied service-connected compensation for posttraumatic stress disorder (PTSD). The RO granted service connection for erectile dysfunction, with an initial noncompensable rating, and special monthly compensation for loss of use of a creative organ. The Veteran timely appealed both the denial of his psychiatric claim and the initial rating assigned for erectile dysfunction. In his substantive appeal (VA Form 9), received in April 2012, the Veteran restricted the scope of his appeal to the psychiatric claim. In his claim for compensation, the Veteran referred to his claimed psychiatric disorder as PTSD. The Board has broadly interpreted the Veteran's claim to include any acquired psychiatric disorder which may be related to military service. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. For the reasons below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND According to post-service VA mental health records, the Veteran has a diagnosis of PTSD. He attributes this condition to stressful experiences during his military service. In his hearing testimony, he said that he was stationed at a United States military installation in Kuwait when it came under attack. He further testified that this incident occurred in 1995 - after the cease-fire which ended combat operations between the United States and Iraq in 1991, but substantially before the beginning of the second Persian Gulf War in 2003. The second incident the Veteran described at the hearing also took place during his deployment in Kuwait. According to the Veteran, he was part of a convoy of vehicles and was inside a vehicle when it was run over by a tank travelling in the opposite direction. He testified that he believed this event happened in 1997 and that another soldier died as a result of the accident, but he is not sure of the time of year. Service treatment records indicate that the Veteran was deployed to Kuwait between November 1995 and November 1997. In February 2009, shortly after he filed this claim, the Veteran submitted a Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) (VA Form 21-0781). The statement does not mention an attack on U.S. Force Kuwait in 1995, but it does describe two separate stressful events involving tanks. According to the statement, in June 1990, when he was stationed in Germany, the Veteran witnessed the tracks of a tank break, causing the tank to flip over and crush one member of the tank's crew. The form indicates that members of the Veteran's unit made statements to military police in Germany about this incident. The second event was very similar to the incident described in the hearing transcript - except that, according to the form, the event occurred in April 1996 (not in 1997) and the Veteran escaped the jeep shortly before it was crushed by the tank. In April 2009 the AOJ received a written statement from a person who identified himself as a soldier who was with the Veteran in the convoy at the time of the alleged tank incident in Kuwait. His description of the incident is similar to the description provided by the Veteran. Also in April 2009, the AOJ issued a formal finding that the Veteran failed to provide sufficient information to send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) to corroborate the Veteran's claimed in-service stressors. The memorandum relied on a review of the Veteran's personnel file and the Veteran's failure to return a PTSD questionnaire, which apparently had been mailed to him in December 2008, to justify the decision not to send a request to JSRRC to attempt to corroborate the claimed incidents. In July 2009, the AOJ sent the Veteran another letter asking him for detailed information about his claimed in-service stressor, including a description of the event, the date and location of the event, and the military unit to which the Veteran was assigned at the time of the event. After the Veteran did not respond to this letter, in August 2009, the AOJ issued a second memorandum finding a lack of information necessary to corroborate the claimed stressors. The purpose of the memorandum was to describe the AOJ's efforts made to obtain the information that would be needed to make an appropriate request to the JSRRC and to explain why, in spite of those efforts, the available information was not enough. The memorandum explained that the AOJ obtained the Veteran's service personnel records and had asked the Veteran to complete a PTSD questionnaire. The memorandum further explained that because the Veteran failed to complete the questionnaire, or respond to the July 2009 letter, and the service personnel records did not include any combat decorations, the information was insufficient to make an appropriate corroboration request. Although the AOJ issued two memoranda finding that the information was insufficient to attempt to corroborate the Veteran's claimed stressors, neither of the memoranda acknowledged receipt of the Veteran's VA Form 21-0781 or the written statement of his fellow soldier. Perhaps most importantly, the AOJ's July 2009 letter suggested to the Veteran that, to make an appropriate request to JSRRC, it was necessary to provide a description of the alleged stressful incident, the date and location of the incident, and to identify the military unit to which he was assigned at the time of the incident. All of this information was in the VA Form 21-0781 previously provided by the Veteran. Under these circumstances, it seems likely that the Form 21-0781, received in February 2009, may have been temporarily separated from the rest of the claims file or was simply overlooked by the AOJ personnel when they decided that the Veteran did not provide enough information to corroborate his claimed in-service stressors. It therefore remains unclear whether VA satisfied its duty to assist the Veteran in obtaining potentially relevant evidence. Accordingly, the Board will remand the Veteran's PTSD claim with instructions to send an appropriate request to JSRRC. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and give him the opportunity to clarify the stressful in-service events to which he attributes his current claimed psychiatric disorder. The Veteran should be reminded that he has previously provided a written statement identifying two events (a tank accident in Germany in June 1990 and another tank/automobile accident in Kuwait in April 1996) and that, in his hearing testimony, he identified the relevant stressful events as a tank/automobile accident in Kuwait in 1997 and an attack on U.S. Force in Kuwait in 1995. The Veteran should be invited to clarify whether the dead soldier he identified in his hearing testimony was killed in Germany or Kuwait. According to his February 2009 written description, a soldier was killed in the accident in Germany. In his hearing testimony, the Veteran said that a soldier died in the tank accident in Kuwait. 2. Whether or not the Veteran responds to the letter, contact the U.S. Army and Joint Services Records Research Center (JSRRC), the National Personnel Records Center (NPRC) and/or any other appropriate depository and attempt to verify the claimed stressful events described in the VA Form 21-0781 submitted by the Veteran in February 2009 and any additional information received from the Veteran post-remand. The AOJ is advised that the February 2009 Form identifies the month and year of each claimed incident, the location of both incidents, and the military unit to which the Veteran was assigned at the time of each claimed incident. 3. The AOJ should consider the need for further development based on the results of the development requested above, including, if appropriate, ordering new examinations and/or medical opinions concerning whether any of the Veteran's claimed psychiatric disabilities are the result of, or aggravated by, any of the incidents described in his written statements and hearing testimony. The claims file includes a March 2012 VA examination report which includes an equivocal diagnosis of PTSD and a statement that the tank accidents, if true, would be sufficient to support a diagnosis of PTSD. 4. Thereafter, readjudicate the issue on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be allowed an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. The appellant 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). _________________________________________________ DAVID L. WIGHT 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).