Citation Nr: 0717247 Decision Date: 06/08/07 Archive Date: 06/18/07 DOCKET NO. 02-14 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D. Hachey, Associate Counsel INTRODUCTION The veteran served on active duty from February 1968 to December 1970. Service in Vietnam is indicated by the evidence of record. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (the RO). Procedural history This case was previously before the Board in December 2003, at which time the Board denied the veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The veteran duly appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court) which, in a December 2006 decision, vacated the Board's December 2003 decision and remanded the matter for further development and readjudication. The specifics of the Court's decision will be discussed in greater detail below. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The veteran is seeking service connection for an acquired psychiatric disability, to include PTSD. He essentially contends that various stressful experiences in Vietnam led to his condition. He specifically points to multiple alleged sniper attacks during supply runs as being the cause of this condition. Pursuant to the Court's December 2006 decision, before the Board can readjudicate the claim, additional development is in order. Reasons for remand The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West Supp. 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [noting that a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. The Board's December 2003 decision found that VA had complied with the VCAA notice requirements by virtue of two documents - the September 2002 statement of the case (SOC) and the May 2001 rating decision. The Board essentially found that these documents advised the veteran of the pertinent law and regulations regarding his claim and of the need to submit additional evidence. The Board further noted that an attachment to the September 2002 SOC informed the veteran "as to what evidence he was required to provide and what evidence VA would attempt to obtain on his behalf." The Court, however, held that the Board's reliance on these documents was impermissible, as both "were unrelated to 5103(a) and § 3.159(b) notice and . . . were both post- decisional documents." See Mayfield v. Nicholson, 444 F.3d 1328, 1335 (Fed. Cir. 2006) [holding that the VCAA does not permit compliance through a combination of unrelated pre-and post decisional communications]. The Court thus commanded that on remand, the veteran be provided with compliant notice. "Buddy" statements In support of his claim, the veteran submitted statements from two fellow soldiers, T.S. and C.R., who allegedly served with him at the Phu Lam Signal Base and who were familiar with the circumstances surrounding the his alleged stressors. T.S., in particular, maintains that he accompanied the veteran on several supply runs in which they were subject to sniper fire. The Court noted in its December 2006 decision that the credibility assigned to these statements is critical to the eventual resolution of the case. It is unclear from the record, however, whether either man actually served in the veteran's unit, or whether their dates of Vietnam service coincided with that of the veteran. Given the key role of the statements of T.S. and C.R., the Board believes that on remand the agency of original jurisdiction should attempt to verify whether either man served in the veteran's unit and their respective dates of service in Vietnam. Accordingly, the case is remanded to the Veterans Benefits Administration (VBA) for the following actions: 1. VBA should provide the veteran with a notice letter regarding his service- connection claim for an acquired psychiatric disability, to include PTSD, which complies with the notification requirements of the VCAA. 2. VBA should also attempt to verify through official sources whether T.S. and C.R. served in the veteran's unit, as well as the dates of their respective service in Vietnam. 3. Thereafter, after undertaking any additional development indicated by the veteran's response to the VCAA letter or the verification efforts regarding T.S. and C.R., VBA should readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until he is contacted. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ Barry F. Bohan 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 your appeal. 38 C.F.R. § 20.1100(b) (2006).