Citation Nr: 0725458 Decision Date: 08/16/07 Archive Date: 08/22/07 DOCKET NO. 05-07 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress syndrome (PTSD). 2. Does activation of the National Guard for a natural disaster qualify as "active duty" for purposes of service connection. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Fitch, Associate Counsel INTRODUCTION The veteran served on active duty from December 1947 to May 1950, and again from October 1961 to October 1962. The veteran also had service with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that denied service connection for PTSD. The veteran perfected an appeal of this determination to the Board. In May 2007, the veteran and his spouse, accompanied by the veteran's representative, testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the veteran's claims file. 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 After a careful review of the claims folder, the Board finds that the veteran's claim must be remanded for further action. Here, the Board notes that the veteran's medical records indicate an unsure diagnosis regarding his condition. The veteran has been diagnosed with PTSD, but has also been assessed as rule out anxiety disorder, NOS with depressive features and rule out PTSD, non-combat, chronic. The veteran also indicated several stressors possibly underlying his condition. He indicated in testimony before the Board that during his first period of active service he served at the Brooklyn Army Navy Yard and helped unload and process the caskets of dead servicemen who were being returned from the battlefields of Europe after World War II. The veteran also indicated that he was activated during the Cuban Missile Crisis in 1961 and 1962. He was assigned to military funeral detail at the time, and indicated that it bothered him greatly. Some of the funerals in which he assisted were for servicemen around his own age. Finally, the veteran indicated that his National Guard unit was activated for the Buffalo Creek Flood that occurred in West Virginia on February 26, 1972. The veteran stated that he was assigned to rescue and recovery, and that this entailed recovering some of the 125 or so people and children that drowned in the flood and taking them to a makeshift morgue set up in a school. Based on the foregoing, the Board concludes that the veteran should be afforded a VA examination in connection with his claim. Here, the Board notes that the veteran's claims file presents potentially differing diagnoses of his condition. The Board also notes that the veteran should be allowed an opportunity to verify his active duty stressors. A VA examination is warranted in order to determine whether the veteran has PTSD and, if so, whether the condition is related to a verified in-service stressor. The veteran should also be given an additional opportunity to verify any stressors, by buddy statements or otherwise, prior to a VA examination. Prior to affording the veteran a VA examination in connection with his claim, the veteran should be afforded an opportunity to submit additional evidence relevant to his claim. Here, the Board notes that the veteran indicated that he has been treated for his condition at the Huntington, West Virginia VA Medical Center, as well as the Charleston, VA clinic. Records dated to March 2005 from the Huntington facility have been associated with the record, but the veteran's claims file does not contain records from the Charleston facility. Upon remand, therefore, the RO should update the veteran's claims file with records from these facilities, dated March 2005 for the Hunting West Virginia VA Medical Center, and dated since service from the Charleston facility. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain these outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c) (2004). Finally, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claims, but he was not provided with adequate notice of the type of evidence necessary to establish a disability rating or effective date. Upon remand therefore, the veteran should be given proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that informs the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, and also includes an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. In view of the above, this matter is REMANDED to the RO for the following actions: 1. The RO should send the veteran, and his representative, if any, a letter that contains a notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim addressed in this remand, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should contact the veteran and request that he identify all VA and non- VA health care providers, not already associated with the veteran's claims file, that have treated him since service for PTSD. This should specifically include any medical treatment records from the Huntington, West Virginia VA Medical Center, dated since March 2005, and from the Charleston VA facility, dated since service. The aid of the veteran in securing these records, to include providing necessary authorizations, should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the veteran should be informed in writing. 3. The RO should contact the veteran and request that he provide any information, including dates, locations, names of other persons involved, etc., relating to claimed service stressors. The veteran should be advised that this information is necessary to obtain supportive evidence of the claimed stressful events in service and that he must be specific as possible, because without such details an adequate search for verifying information cannot be conducted. The veteran should also be advised that he should provide buddy statements or other corroborating testimony that may support his stressors. The RO should afford the veteran an opportunity to submit and/or identify any alternate available sources that may provide credible support regarding his claimed stressors. 4. The RO must then review the entire claims file, including the veteran's medical treatment records and previous statements of stressors, and any information submitted by other individuals or otherwise obtained pursuant to this remand, and prepare a summary of all claimed stressors. A summary of the stressors, and all associated documents, should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC), formerly the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7701 Telegraph Road, Kingman Building, Room 2C08, Alexandria, VA 22315-3802. The JSRRC should be requested to provide any information that might corroborate the veteran's alleged stressors. The RO should also request that the JSRRC or NPRC, as appropriate, provide any morning reports, unit action, and unit status reports for the veteran's unit covering the dates specified by the veteran in regards to his alleged stressors. If the RO is unable to corroborate a stressor, the RO must inform the veteran of the results of the requests for information about the stressors. 5. After associating with the claims folder all available records received pursuant to the above-requested development, the veteran should be afforded a VA psychiatric examination to determine the current nature and extent of any psychiatric disability found to be present. All necessary special studies or tests should be accomplished. It is imperative that the examiner who is designated to examine the veteran reviews the evidence in the claims folder, including a complete copy of this REMAND, and acknowledges such review in the examination report. The report of examination should contain a detailed account of all manifestations of any psychiatric disability found to be present. All necessary tests should be conducted, and the examiner must specifically rule in or exclude a diagnosis of PTSD. In doing so, the examiner should comment on the medical evidence of record. If the examiner diagnoses the veteran as having PTSD, the examiner must specifically indicate the stressor or stressors underlying that diagnosis and offer an opinion as to the likelihood that there is a link established by the medical evidence between the veteran's PTSD and such stressor(s). If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should clearly indicate that. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, in a legible report. 6. After completion of the foregoing, the RO should re-adjudicate the veteran's claims. If any determination remains adverse to the veteran, he and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. 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. 2006). _________________________________________________ DEBORAH W. SINGLETON 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 ).