Citation Nr: 0731548 Decision Date: 10/05/07 Archive Date: 10/16/07 DOCKET NO. 05-39 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for post traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from October 1963 to October 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Under the Veterans Claims Assistance Act of 2000, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The duty to assist in post traumatic stress disorder (PTSD) cases involves notifying the veteran of alternative forms of evidence that may serve to verify alleged inservice incidents or stressors. Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004) (holding that the duty to assist was not met where VA did not advise a noncombat veteran of the possibility of submitting alternative forms of evidence, including buddy statements, to verify inservice occurrences). In July 2004, the veteran filed a claim of entitlement to service connection for PTSD based on near-misses in the helicopter, counting the bullet holes in the chopper after a mission, and flights into North Vietnamese camps. In an August 2004 letter, the RO provided the veteran with notice of the information and evidence needed to substantiate and complete his claim. The letter did not notify the veteran of the possibility of alternative forms of evidence to prove inservice occurrences, including buddy statements, but contained a stressor information sheet to be filled out and sent back to the RO. The veteran did not provide the RO with any additional information regarding his alleged inservice stressors, instead only providing a list of his PTSD symptoms. In a November 2004 VA psychiatric examination, however, it appears the veteran stated that he or witnessed the death of two of his friends in Vietnam. The examiner diagnosed PTSD. That same month, the RO denied the veteran's claim for entitlement to service connection for PTSD for lack of a verified stressor. The RO did not attempt to contact the veteran to determine if he could provide additional information regarding the alleged deaths. Although the duty to assist is not a one-way street, and the veteran cannot passively wait for help where he may or should have information that is essential in obtaining evidence, see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), the Board finds that additional development regarding the veteran's alleged PTSD stressors must be conducted prior to an appellate determination. Accordingly, the case is remanded for the following action: 1. The RO must provide notice as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO must contact the veteran and request additional information regarding the deaths of his two friends, Lockhart and Allison, including the circumstances of the deaths, the approximate location, and an approximate time period. The RO must also inform the veteran that he may submit corroboration in the form of "buddy" statements, to include statements from fellow service members, family members, or friends (including letters written home while in service), as to his claimed stressor events. The RO must afford the veteran the opportunity to identify or submit any additional pertinent evidence in support of his claim. 3. If the veteran identifies additional treatment records or other pertinent documents not already associated with the claims file, the RO must attempt to procure copies. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The veteran and his representative must be given an opportunity to respond. 4. If the veteran provides appropriate stressor verification information, the RO must contact the Joint Services Records Research Center (JSRRC), or other appropriate resources and request information regarding the alleged stressors. All attempts to secure this evidence must be documented in the claims file, and all responses received from the JSRRC, and/or other appropriate resources, should be associated with the claims file. 5. Following the above, and if and only if, adequate verification of stressors is obtained, the veteran must be provided with a VA psychiatric examination to ascertain the nature, severity, and etiology of psychiatric disorder found. The RO must specify for the examiner the stressor or stressors that it has determined are established by the record and the examiner must be instructed that only those events may be considered for the purpose of determining whether appellant was exposed to a stressor in service. The examiner must be provided with the entire claims file for review in conjunction with the examination. All necessary special studies or tests including psychological testing and evaluation must be accomplished. The examiner must integrate the previous psychiatric findings and diagnoses of current findings to obtain a true picture of the nature of the veteran's psychiatric status. If the diagnosis of PTSD is deemed appropriate, the examiner must specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record and found sufficient to produce PTSD by the examiner. The report of examination must include a complete rationale for all opinions expressed. 6. The RO must notify the veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2006). In the event that the veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 8. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2007).