Citation Nr: 0709799 Decision Date: 04/04/07 Archive Date: 04/16/07 DOCKET NO. 05-16 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Coast Guard from March 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The only annotation of a clinical diagnosis of depression comes in the form of a December 2001 report of a VA clinical examination, which attributes depression as a not otherwise specified secondary condition to a diagnosis of PTSD. As such, the adjudication of entitlement to service connection for depression is deferred until after the instructions of the current remand are complied with. The veteran contends that he has developed PTSD as a result of several stressful events which he alleges took place during his service with the U.S. Coast Guard. In essence, the veteran lists a history of several assaults on his person by fellow Coast Guardsmen and a fall into an engine room where he was trapped by a hatch door. It appears that the veteran, through clinical reports, has a diagnosis of PTSD. As the veteran's service personnel history does not reflect combat, nor does the veteran contend that he participated in combat, his alleged stressors must be verified before they can be accepted and there must be a competent medical opinion which links the veteran's stressors to his current PTSD. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The RO denied the veteran's claim on the basis of there being no confirmed stressor verifiable from a search of the service medical and personnel history. This, the Board finds, is a partly erroneous conclusion. Specifically, the veteran has alleged in a "stressor statement" that, on April 27, 1965 while stationed aboard the USCGC Planetree, he was struck across the face by another enlisted member. The veteran contends that he developed a perforated ear drum and hearing loss due to this, and is haunted by the memory of the assault (frequent nightmares, etc.). A service medical record dated May 17, 1965 states the following regarding the incident: " [the veteran] was hit in the left ear about three weeks ago and complains of difficulty hearing. Ear has cleared enough to see a perforation of the tympanic membrane" (emphasis added). The Board finds this evidence to be a credible verification of the veteran's alleged assault, and finds that this alone is sufficient so as to necessitate a remand to the RO for a comprehensive VA psychiatric examination with an associated opinion on the existence of PTSD and potential etiology of the disorder. As regards the veteran's other alleged stressors, to include the other claimed assaults and entrapment inside a shipboard engine room, the record is mostly silent. There is one pertinent service medical record notation which states that the veteran "fell through a hatch on board ship and lacerated his right arm." The veteran received medical attention for this, and was found to be medically within normal limits, save for some bruises and abrasions. Interestingly, the veteran has pinpointed the date of his stressor as February 19, 1964, while this treatment record is dated May 17, 1965. The temporal issue aside (as the Board acknowledges that the veteran could have easily forgotten the exact date of incident), the medical report itself shows only a very minor accident, with residual bruising as the most traumatic injury. This is in sharp contrast to the veteran's account of being trapped beneath a large hatch door, with his "legs pinned" beneath him, with resultant multiple traumatic wounds requiring over one hundred stitches. As the only documented report of this type of incident does not seem to fit the veteran's descriptions of his claimed stressful event, the Board concludes that either the May 17, 1965 incident represents a separate, apparently non-traumatic accident, or, that the documentation of the event as it stands means that the claimed stressor of a traumatic fall is not verified, and in remanding this case directs the veteran to obtain any evidence he may have which may corroborate this incident, or any other of the claimed stressors. Specifically, the veteran is informed to submit "buddy statements" from fellow Coast Guardsmen, letters written home at the time of the incidents, testimony from those close to the veteran who would have had knowledge of the incident, etc. The need for the veteran to submit additional evidence is particularly relevant for unverified reports of in-service physical assaults, as 38 C.F.R. § 3.304(f)(3) provides that evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. The Board also notes that the RO has attempted to verify the veteran's duty history through the Joint Services Records Research Center (JSRRC) (formerly the United States Armed Services Center for Research of Unit Records (CURR)) in an attempt to verify stressors, but stated that the periods requested were too broad for an effective search. The veteran has identified specific dates and timeframes of his alleged stressors, and it appears as if the deck logs for the veteran's ships were never requested. In addition to affording the veteran a psychiatric examination, the RO is directed to obtain the deck logs for USCGC Wachusett from June 1962 to January 1964 and USCGC Planetree for February 19, 1964. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. 2. Contact the National Personnel Records Center through the JSRRC in an attempt to locate the deck logs for USCGC Wachusett from June 1962 to January 1964 and USCGC Planetree for February 19, 1964. Additionally, if the JSRRC does not have these records, contact the U.S. Department of Homeland Security/U.S. Coast Guard, and any other relevant federal agency in an attempt to locate the deck logs. If the deck logs are available, ensure copies are placed in the file prior to re- adjudication. If, after exhaustive search, the deck logs remain unavailable, annotate the record to reflect this. 3. Inform the veteran that any information in his possession which might aid in the substantiation of his claim, to include statements form service "buddies," letters written home in- service, or any statements from friends, family members, health care professionals, or clergy which might be able to corroborate the veteran's alleged stressors or any identifiable behavioral changes associated with the claimed in- service assaults, should be submitted, or the names and addresses of personnel familiar with the incidents should be provided to VA so that identified evidence can be obtained. 4. Schedule the veteran for a comprehensive VA psychiatric examination for the purposes of determining the existence of PTSD or any other psychiatric disability. If, after a thorough mental status examination and review of the claims file, PTSD or another psychiatric disability is found to be present, the examiner is asked to provide an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that PTSD or another psychiatric disability was caused by any incident or event in military service, and specifically for the claim of PTSD, to the veteran's claimed in-service stressors, including the verified assault of April 1965. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation or aggravation as to find against causation or aggravation. More likely and as likely support the contended relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and indicate that the claims file was reviewed. If a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 5. After completion to the extent possible of the directed development, re- adjudicate the veteran's claim. If the claim remains denied, issue an appropriate supplemental statement of the case and forward the case to the Board for final adjudication. After completion to the extent possible of the directed development, re-adjudicate the veteran's claim. If the claim remains denied, issue an appropriate supplemental statement of the case and forward the case to the Board for final adjudication The appellant has the right to submit additional evidence and argument on the matter or 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 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 Supp. 2005). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 the veteran's appeal. 38 C.F.R. § 20.1100(b) (2006).