Citation Nr: 22018290 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 07-00 111A DATE: March 28, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disability, variously diagnosed, to include depression, anxiety, and/or posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for alcoholism is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In a lengthy appellate history, the matter most recently was remanded by the Board in February 2018. As an initial matter, though there was an initial request for a new Board hearing, on the day of the scheduled hearing the Veteran and his attorney agreed at an informal conference with the undersigned Veterans Law Judge, as affirmed in a March 2022 letter from the Veteran's attorney, that the Veteran is satisfied with the testimony elicited at the prior December 2017 Board hearing and that he and his attorney believe additional remand is needed for compliance with the directive of the prior Board's decision. After review of the record, the Board agrees that further remand unfortunately is required to ensure substantial compliance with the Board's prior decision. Though the record reflects that on remand there was compliance with the Board's directives to associate with the claims file a 1986 mental status evaluation and treatment records from the Texas Department of Criminal Justice, there was not substantial compliance with the prior decision's directive to send to the "appropriate center(s)" requests for information to corroborate the Veteran's claimed stressor of riding on a helicopter that lost control and made a hard emergency landing. The Board's prior decision directed for appropriate attempts to corroborate the event in which the Veteran feared for his life when a helicopter, in which he was riding in order to transport a critical part to an air defense battery, encountered an emergency in flight, "started spinning in the air," and then "came down very hard," leaning on its side as if it could fall but ultimately settling upright. During the event, the pilot told the Veteran to "get ready" and "that we were going down," and the Veteran "remember[s] thinking that it was time to die." After the helicopter managed to land, the Veteran was shamed by the pilot and co-pilot for having lost control of his bowels and vomited, and when another helicopter came to transport them back to the airfield, the Veteran protested at having to fly in a helicopter after having just gone through this experience, but he was ultimately ordered to get on. The Veteran reports that due to the incident and how the other servicemembers treated him afterwards he "started drinking a lot." Moreover, "[e]very time [he] would see a helicopter flying [he] would start to panic and several times [he] used the bathroom in [his] pants." The Board notes that the Veteran's service personnel records confirm his military occupational specialty as a senior repair parts specialist in Germany from March to May 1979, the time during which the Veteran remembers the event occurring. Following the Board's prior decision, the AOJ made multiple requests for information to corroborate the event reported by the Veteran; however, the record reflects that all of these requests were sent to the U.S. Army Criminal Investigation Command, now known as the Criminal Investigation Division (CID). The CID states that its organization "is responsible for conducting felony-level criminal investigations in which the Army is, or may be, a party of interest," see Who We Are, available at https://www.cid.army.mil/ (last accessed March 2022), but it is unclear on what basis it could have been concluded that the event described by the Veteran involved a crime. Moreover, even if CID were an appropriate center to contact for potentially holding information relevant to the event, it is unclear why the CID was the only military organization contacted for information. Accordingly, the Board does not find substantial compliance with the directive of the prior February 2018 decision's directive to contact all appropriate centers. Dyment v. West, 13 Vet. App. 141, 14647 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the February 2018 decision directed for attempts to confirm the aviation units located with the military battalion/company at Germany and whether any aircraft from these units experienced a hard and/or forced landing in 1979, but the record does not reflect any such attempt was made. Id. A Board remand confers on the Veteran the right to compliance with the orders. Stegall, 11 Vet. App. at 271. Therefore, further remand is required to ensure compliance with the directives of Board's February 2018 decision. Id. Additionally, on remand the Board will direct for provision of a C&P examination and etiology opinion regarding the Veteran's diagnosed and claimed psychiatric disorders. The evidence reflects the Veteran was diagnosed with depression by a VA provider in January 2001, and diagnosed with depression and anxiety by treatment providers during his incarceration at a Texas Department of Criminal Justice facility, both of which conditions, the Board notes, are the disabilities for which the Veteran originally sought service connection in his July 2004 claim. Given this evidence of current diagnoses and competent evidence of the in-service stressor event, as well as the Veteran's assertion of symptoms since this event, a medical examination and etiology opinion should be provided. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4). Finally, because the Veteran's alcoholism is claimed as potentially secondary to his psychiatric disorders, it is intertwined with the claim for service connection for a psychiatric disorder and therefore will be remanded with it. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001). Accordingly, the matter is REMANDED for the following action: 1. Forward a summary of the Veteran's non-combat stressor to the appropriate center(s) with a request for any information, to include unit records, flight manifests, logbooks, or any other document which would verify the Veteran's alleged stressor. The Veteran has provided his unit, location, and the name of the supervisor who requested the flight. An attempt should be made to confirm the aviation units located with the Headquarters and Headquarters Battalion/Company at Katterbach, Germany, including, but not limited to, the 501st, and whether any aircraft from these units experienced a hard and/or forced landing in 1979. Any requests made, and any negative replies received, must be documented in the Veteran's claims file. 2. Then, schedule the Veteran for an examination regarding the nature and etiology of any psychiatric disorder, to include diagnosed depression and diagnosed anxiety. For any diagnosed condition present since the Veteran's claim (approximately 2004), the examiner must opine whether it is at least as likely as not (meaning an approximate balance of positive and negative evidence) that the Veteran's condition was due to the event in service in which the Veteran feared for his life when a helicopter in which he was a passenger encountered an emergency problem in flight, "started spinning in the air," and then "came down very hard," leaning over on its side before settling back upright. During the event the Veteran thought "that it was time to die," and after the helicopter managed to land, the Veteran was shamed by the pilot and co-pilot for having lost control of his bowels and vomited, and when another helicopter came to transport them back to the airfield, the Veteran protested at having to fly again, but he was ultimately ordered to ride on the second helicopter. The examiner should consider and discuss the Veteran's reports that due to the fear of the incident and how the other servicemembers treated him afterwards, he "started drinking a lot," and "[e]very time [he] would see a helicopter flying [he] would start to panic and several times [he] used the bathroom in [his] pants." The examiner should also consider and discuss treatment records from the Veteran's incarceration, to include in 2004, 2005, and 2006, which recorded the Veteran's reports of anxiety attacks, nightmares, and flashbacks involving the event. The examiner should also consider and discuss the Veteran's reports that from the time of the helicopter event onwards, he began drinking and continued to do so after service. The examiner is asked to opine whether the Veteran has alcoholism that is at least as likely as not proximately due to or aggravated (worsened beyond the normal course of the disease) by his depression disorder and/or his anxiety disorder. 3. After the above development and any other development deemed necessary is completed, readjudicate the Veteran's claim, to include service connection for a psychiatric disability (including depression, anxiety, and PTSD), and service connection for alcoholism. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.