Citation Nr: 25005385 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 19-22 245A DATE: April 22, 2025 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1978 to December 1998. This case comes to the Board from a December 2018 decision of the Agency of Original Jurisdiction (AOJ), which denied the claimed benefits listed above. The Veteran appealed both rulings by filing a timely notice of disagreement (NOD). In April 2025, on its own motion. and after finding that that there was an unnecessary administrative delay which was not the Veteran's fault, the Board ordered this appeal to be advanced on the docket pursuant to 38 C.F.R. § 20.902(c). Although the need for the associated delay is regrettable, it is necessary to remand this case for further development. When the AOJ receives a timely NOD appealing a decision in the legacy system, instead of sending the appeal to the Board directly, the AOJ must issue a Statement of the Case (SOC) readjudicating the issues identified in the NOD. See 38 C.F.R. §§ 19.26, 19.29, 19.30. When a legacy appeal reaches the Board before the relevant issues have been readjudicated as required by these regulations, the Board must remand the relevant issues with instructions to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Unfortunately, the AOJ has never issued an SOC readjudicating the issues in this appeal. On remand, the AOJ should also undertake further development to help decide whether the Veteran is entitled to service connection for his claimed psychiatric disorder. A July 2018 examination report reflects a diagnosis of posttraumatic stress disorder (PTSD). The Veteran has attributed this condition to four alleged stressful events which, according to him, occurred during his active-duty service. In a June 2016 statement, he wrote that in 1986 he witnessed a friend, who was also serving in the Marines, being beaten up by the police. In March 2016, the Veteran's friend wrote a letter which is consistent with the Veteran's statement. In the same statement, the Veteran attributed his PTSD to the death of another friend who served with him in the Marines. According to the June 2016 statement, the Veteran's friend, whose name he identified, died in a barracks explosion in Grenada, in October 1983. AOJ personnel suspected that the Veteran might be referring to the bombing at the Marine Corps barracks in Beirut Lebanon in October 1983. According to an January 2017 e-mail message, the Veteran "is adamant that this happened in Grenada and is not the explosion in Beirut of the same period." But the AOJ confirmed that the marine identified by the Veteran died in Beirut and, in a subsequent telephone conversation, explained this to the Veteran. According to a report of general information, dated April 2017, the Veteran "apologized for his mistake in regards to the location of the death of his friend." The third event, according to statements from the Veteran received in June 2016 and August 2016, occurred in California in October 1992, when a fellow marine died in a motorcycle crash on his way to work. According to the June 2016 statement, the Veteran identified the marine's body after the accident. The statement includes the name of the marine who died. The fourth incident the Veteran described to the July 2018 examiner, who included this summary of it in his report: "In Grenada, the veteran was in line to use a field toilet, and the Marine in front of him went into the latrine and shot and killed himself." According to the July 2018 examiner, this event, but not identifying the body of the man killed in the motorcycle accident, satisfied the requirements for a criterion A stressor to support a diagnosis of PTSD. Despite his April 2017 acknowledgment that he had been mistaken when he said his friend died in a barracks bombing in Grenada, the Veteran apparently repeated something similar to his first version of the event during the July 2018 examination interview because the examiner also concluded that the following incident satisfied criterion A: "Stressor #3: Veteran was stationed in Grenada when a USMC barracks [sic] were blown up with multiple [killed in action]." In the July 2018 examiner's opinion, it was at least as likely as not that the Veteran's PTSD was related to his in-service stressors. Since the examiner apparently based this conclusion at least in part on a version of events that the Veteran admitted was false - the Veteran witnessing the death of his friend when a barracks exploded in Grenada - the examiner's opinion is not adequate to support a favorable decision on the claim. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). The Board has considered the possibility that the July 2018 examiner was endorsing the theory that the Veteran developed his PTSD in service when he learned his friend had died at the barracks explosion in Lebanon even though the Veteran was not in Lebanon at the time of the explosion. But the examiner indicated that the barracks explosion incident and the latrine suicide incident both satisfied criterion A for a PTSD diagnosis while the second incident discussed in the report (learning about the death and identifying the body of the man who died in the motorcycle accident) did not satisfy criterion A. This pattern suggests that the examiner's opinion was based on the inaccurate premise that the Veteran personally witnessed the barracks explosion. It is unlikely that official records contain information which would confirm or disconfirm the Veteran's statement that he witnessed his friend being beaten by the police. But the other three incidents all involve the deaths of U.S. servicemembers. It is reasonable to suppose that, if these events occurred as the Veteran said they did, there are official records which will corroborate his statements. To verify the Veteran's claimed stressors, the AOJ wrote to the office of Military Personnel Services Casualty Assistance Section. The AOJ's letter asked for verification of the deaths of the marine in the motorcycle accident and of the marine who died in the barracks bombing. In response, the AOJ received letter from the Casualty Section of Marine Corps Headquarters, indicating that they were unable to verify the deaths of either person. As the Board has mentioned, however, an employee of the AOJ was later able to verify that the second marine identified by the Veteran was killed in the bombing of the barracks in Lebanon. This circumstance suggests that seeking corroboration from other recordkeeping repositories could potentially verify the other marine's death in the motorcycle accident. The AOJ obtained personnel records which confirm the Veteran's service as a combat engineer. But they include no information indicating that he participated in the United States invasion of the island of Grenada in October and November of 1983. In January 2017, the AOJ obtained the command chronology of the first engineer battalion of the first Marine Division, the Veteran's unit, between September and December of 1983. This document indicates that the unit did not participate in the invasion and, at the time of the invasion, was involved in training and other duties in California. Given his previous mistake about the location of the barracks bombing, the AOJ should explain this information to the Veteran and ask him whether he can provide any more precise information about the time and place of the suicide he described to the July 2018 examiner. For each verified stressor and for the incident in which the Veteran apparently witnessed his friend being beaten by police, the AOJ should obtain a new medical opinion addressing whether the event is related to the Veteran's current psychiatric disorder. Unlike the July 2018 report, the post-remand examiner's opinion should not be limited to PTSD. According to post-service VA treatment records, the Veteran may also have major depressive disorder and anxiety. The Veteran's claim is best understood as seeking compensation for any current mental disorder which may be related to service. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Finally, the AOJ should seek copies of potentially relevant records from the Social Security Administration (SSA). The report of a psychologist in private practice, dated September 2022, indicates that the Veteran receives disability benefits from SSA. Those records may be relevant to determining whether he is entitled to compensation for his claimed psychiatric and back disabilities. The matters are REMANDED for the following action: 1. Write to the Veteran and invite him to provide additional details about the stressful events during his Marine Corps service to which he attributes his current psychiatric disorder. The letter should acknowledge that the Veteran has identified four stressful events in service which he has claimed are related to his psychiatric symptoms: (1) identifying the body of a fellow marine who died in a motorcycle accident in California in 1992; (2) death of a marine when a bomb exploded at a Marine Corps barracks; the Veteran's earlier statements suggested this incident occurred in Grenada but records confirm that the explosion and the resulting death of the marine occurred in Beirut, Lebanon; (3) the suicide of an unidentified Marine whom the Veteran said he witnessed while waiting to use a toilet in Grenada; (4) witnessing police beating up a friend of his in California during his Marine Corps service. Advise the Veteran that his service personnel records do not indicate that he was ever deployed to Grenada during his Marine Corps service. Moreover, the command chronology of the first engineer battalion of the first Marine Division between September and December of 1983, the Veteran's unit at the relevant time, indicates that this unit did not participate in the United States invasion of the island of Grenada in October and November of 1983. Is the Veteran confident that he witnessed the suicide of another marine in Grenada? If this event did not occur in Grenada, where did it happen? Explain to the Veteran that he is welcome to provide clarifying information about the time, place, and circumstances concerning his claimed in-service stressors. 2. The AOJ should conduct or request research into potentially relevant unit histories, unit records, or other appropriate records depositories to verify the stressful events described by the Veteran in his written statements, including any correspondence he sends in response to the letter required by part one of these instructions and a VA Form 21-0781 ("Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD)"), received in August 2016. The AOJ's efforts to verify the stressful events described by the Veteran must include an attempt to verify that a marine in the Veteran's unit, named in the statement, died in a motorcycle crash in California in October 1992. In September 2016, the AOJ wrote to the Casualty Assistance Section Military Personnel Service in Quantico, Virginia to verify this information. A letter from the Casualty Section of Marine Corps Headquarters, dated January 2017, indicates that the office could not verify the death of the marine in the motorcycle crash. However, the January 2017 letter also indicated it could not verify the death of another marine identified by the Veteran, who was later confirmed to have died in the bombing of the barracks in Beirut, Lebanon in October 1983. The Casualty Section's inability to identify the death of the second marine suggests that other agencies or records depositories may be better suited to undertake the necessary research. The AOJ must prepare a memorandum for the claims file describing the results of the requested research into the relevant unit records. 3. The AOJ should send a request to the Social Security Administration (SSA) for copies of all that Agency's records concerning the Veteran. The text of the request to the SSA and any necessary follow-up requests, should make clear that the records requested include copies of medical records, if any, AND ALSO COPIES OF ALL OTHER SSA CLAIMS PROCESSING DOCUMENTS, INCLUDING BUT NOT LIMITED TO COPIES OF THE VETERAN'S APPLICATION TO THE SSA FOR BENEFITS AND THE SSA'S DECISION. The AOJ should carefully review the SSA's response to this request. If the SSA's response does not indicate that the agency searched for copies of the Veteran's application for benefits and the SSA's decision, the AOJ should make a follow-up request. 4. Schedule an examination to determine nature and etiology of the Veteran's claimed acquired psychiatric disorder, to include major depressive disorder, anxiety, and PTSD. The VBMS and Virtual VA electronic claims must be made available to, and be reviewed by, the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disabilities should be identified. After reviewing the claims file and examining the Veteran, a qualified examiner should prepare an opinion on the nature and etiology of any current acquired psychiatric disorder, including PTSD, anxiety, and major depressive disorder. The opinion should respond to the following questions: (a) If any in-service stressor described by the Veteran concerning the deaths of fellow marines has been verified as a result of the development required by part two of these instructions, is it at least as likely as not (a likelihood that is approximately evenly balanced or nearly equal, if not higher) that the Veteran's post-service psychiatric disorder, including PTSD, anxiety, and/or major depressive disorder, is related to that stressor? (b) Is it at least as likely as not (a likelihood that is approximately evenly balanced or nearly equal, if not higher) that the Veteran's post-service psychiatric disorder, including PTSD, anxiety, and/or major depressive disorder, is related to the stressful event described by the Veteran in his June 2016 statement, which is corroborated by a letter from his friend dated March 2016, in which he wrote that in 1986 he witnessed a friend, who was also serving in the Marines, being beaten up by the police? (c) Is it at least as likely as not (a likelihood that is approximately evenly balanced or nearly equal, if not higher) that the Veteran developed major depressive disorder, anxiety or any other psychiatric disorder as a result of learning of the death of a fellow marine who died in the bombing of the Marine Corps barracks in Beirut Lebanon in October 1983, an event which occurred during the Veteran's active-duty service but which the Veteran did not personally witness? (d) Is it at least as likely as not (a likelihood that is approximately evenly balanced or nearly equal, if not higher) that any current psychiatric disorder, including major depressive disorder, PTSD, or anxiety, has its initial onset during the Veteran's active-duty service or is otherwise related to any in-service disease, injury or event? The examiner should prepare a clear rationale thoroughly explaining the medical reasons for his or her opinions. 5. Issue a Statement of the Case (SOC) to the Veteran readjudicating the issues of (1) service connection for an acquired psychiatric disorder and; (2) service connection for a lumbar spine disability. The Veteran must be advised of the time limit for filing a substantive appeal. Then, only if the appeal is timely perfected, are the issues to be returned to the Board for further appellate consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.