Citation Nr: 21012404 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-04 899 DATE: March 4, 2021 REMANDED Entitlement to service connection for any acquired psychiatric condition, to include posttraumatic stress disorder (PTSD), mood disorder and schizoaffective disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1971 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in October 2015. The Board remanded this matter for additional development in April 2016 and October 2018. The Veteran has reported three separate stressors that he asserts are the proximate cause his current psychiatric disorders. First, the Veteran asserts that while in boot camp, his drill instructor struck him in the head, causing an injury and the drill instructor being formally disciplined. See April 2013 VA Form 21-4138. The Veteran also asserts that he served at Nam Phong (colloquially known as the “Rose Garden”) in Thailand temporarily for approximately 9 days sometime between July 1973 and July 1974 and while there, he experienced the other two stressful events: 1) he was subjected to shelling and in fear for his life, and 2) that a fellow soldier, identified as Lance Corporal Cheers by the Veteran, died from an overdose of drugs. See March 2013 VA Form 21-4138, April 2013 VA Form 21-0781. In this regard, the Board, in its October 2018 remand, ordered that development be completed to determine whether the Veteran was temporarily in Thailand for any period of time between July 1973 and July 1974 and to complete any additional necessary development regarding the death of Lance Corporal Cheers in Thailand. In April 2019, the RO requested treatment records, hospital summaries, and diagnoses for the Veteran while on temporary duty in Thailand from the National Archives for July 1973 only. Not unsurprisingly, as the Veteran reported being there temporarily for only 9 days sometime between July 1973 and July 1974, the National Archives reported there were no medical treatment records for the Veteran from July 1973. See July 2019 National Archives Response. Then, in July 2019, the RO sent an additional request to the National Archives requesting unit histories from 1973 with an accompanying quote from the Veteran’s service officer. In August 2019, the National Archives responded and reported that a review of records from the Supply Company, Supply Battalion, 3rd Force Service Regiment for the period between June to August 1973, including muster roles, did not reveal any temporary assignments for the Veteran. Additionally, the National Archives supplied command chronologies from the same time period. The RO, apparently realizing that development for only a small portion of the ordered development (July 1973 to July 1974) had been completed, requested similar responses from the National Archives in August 2019. While the National Archives supplied command chronologies for the period from September 1973 to July 1974 for the Supply Battalion in Okinawa, their response did not include the additional searches for temporary duty assignments such as the one completed in the August 2019 National Archives response. An email uploaded to the claims file in November 2019 demonstrates the RO emailed the National Archives requesting research regarding the death of Corporal Cheers in Thailand in July 1973. Then, in January 2020, the RO once more tried to correct the development required to verify temporary duty from July 1973 to July 1974 by requesting research from the National Archives. In response, the National Archives informed the RO that the date range was too broad. See February 2020 National Archives Response. No further requests were made in smaller increments or otherwise. Thus, the RO has only completed development for the period of June to August 1973. See August 2019 National Archives response. As noted in the October 2018 remand, research entities requiring smaller time periods for research does not absolve the RO from making multiple requests to complete the required development. For these reasons, remand is required to ensure substantial compliance with the Board’s October 2018 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Regarding the Veteran’s reported personal assault in bootcamp, the Board also finds the RO’s development inadequate. See April 2013 VA Form 21-4138, April 2019 VA Form 21-0781a, November 2019 Veteran lay statement. The Veteran specifically reported that between August 1971 and November 1971 in bootcamp, he was sent to a retraining or “extra-motivation” session during which time a drill instructor struck him in the head causing injury to the Veteran and resulting in formal punishment for the drill instructor, identified as Staff Sergeant Morse or Morris. Id. The RO, in October 2019, requested verification from the United States Marine Corps Archives regarding the asserted personal assault. In the same month, the USMC archivist responded and directed the RO to submit requests to the National Archives and to the Navy Jag. No further inquiry was made by the RO to either entity. Instead, the RO mailed the Veteran a letter informing him that the details of his asserted stressor, for which the Veteran provided a limited time window, specific location, and name of his assailant, was not specific enough to warrant further investigation. See October 2019 JSRRC Letter. The Board finds the RO has not fulfilled its duty to assist the Veteran in developing the evidence regarding a personal assault claim and remand is necessary in this regard. See Stegall, supra. Regarding the October 2020 VA examiner’s opinion, the Board notes the examiner concluded that as the August 2019 National Archives letter demonstrated the Veteran was not in Thailand from July 1973 to July 1974, that the reported stressors did not occur and were likely products of the Veteran’s psychoses. The Board notes the August 2019 letter relied on by the October 2020 VA examiner stated that only the period researched was from June to August 1973. Accordingly, the August 2020 VA examiner’s opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). Accordingly, an addendum opinion is required on remand. Finally, during the Veteran’s October 2015 Board hearing, the Veteran testified that he began to experience auditory hallucinations while in service and would often get in fights. See Board Hearing Transcript at 8. Indeed, the Veteran reported to a vocation rehabilitation counselor in October 2011 that he began hearing voices in service (nearly 1.5 years prior to ever filing a compensation claim) and his service personnel records (SPRs) obtained in March 2019 demonstrate that the Veteran was disciplined in April 1974 for striking a fellow service-member in the face with a two by four and threatening to kill another. See October 2011 Partial Initial Evaluation Report, SPRs. On remand, the addendum opinion should consider these incidents and whether they represent the onset of any acquired psychiatric disorder while the Veteran was on active duty. All outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Complete all necessary development to determine whether the Veteran was temporarily in Nam Phong, Thailand (Rose Garden) at any time between September 1973 and July 1974 (June – August 1973 verified in August 2019). Please note that the requirement of a 60-day window for research purposes is in violation of the duty to assist. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (VA’s duty to assist is not bound by the JSRRC’s 60-day limitation for stressor verification requests). If necessary, make multiple requests for separate smaller time periods. 3. If and only if temporary duty in Thailand is confirmed, attempt to verify whether the death of Lance Corporal Cheers occurred at the Rose Garden in Thailand while the Veteran was there. 4. Only after completing items 1 through 4, request an addendum opinion from the October 2020 VA examiner if available. No additional examination of the Veteran is necessary unless the examiner determines otherwise. The entire claims file, including a copy of this remand, should be made available to and reviewed by the examiner. Following a review of the claims file, the examiner is asked to address the following: (a.) Please identify all acquired psychiatric disorders diagnosed on examination and in treatment records since March 2013 (during the pendency of this appeal), to include schizoaffective disorder and mood disorder (see March 2014 VA treatment records). (b.) Please state whether it is a least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder, to include schizoaffective disorder and mood disorder, had its onset in or is otherwise related to service, to include any verified stressor therein. Please do not rely solely on the absence of documentation in the service treatment records. In answering this question please address the following: 1. Please comment, to the best of your ability, whether the Veteran’s longstanding substance and alcohol abuse was related to any acquired psychiatric disorder, including whether such abuse was an attempt to self-medicate. 2. Please discuss the February 2018 statement from Dr. P.J.D. that schizoaffective disorder symptoms “either started in the military or were more likely than not exacerbated by stressors in the military,” as well as the February 2018 statement from L.S., MSW, LCSW that the Veteran’s “military experience interrupts his daily functioning.” 3. Please address the Veteran’s assertion that the episodes of violence and unauthorized absence documented in service personnel records represent “markers” for the purposes of the onset of a psychiatric disorder; 4. Please discuss the Veteran’s report of auditory hallucinations beginning during active duty made to a vocational rehabilitation counselor in October 2011, well before he ever filed a claim for compensation. 5. Please consider the Veteran’s statements that his psychiatric symptoms began during active duty and continued to the present day. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner is unable to opine without resorting to speculation, he or she should provide a thorough rationale as to why that conclusion was ultimately reached. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.