Citation Nr: 0732013 Decision Date: 10/11/07 Archive Date: 10/23/07 DOCKET NO. 04-40 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The veteran had active military service from September 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. REMAND Service connection for PTSD requires (1) a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2007). A review of the veteran's personnel records (DA Form 20) confirms that he was deployed to "USARPAC-Korea" from March 1967 to April 1968, and his unit is identified as Company A, 1st Battalion, 72nd Armor, 2nd Infantry Division. A review of the veteran's DD-Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects that his Military Occupational Specialty (MOS) was "Armor Crewman" and shows that he received the Armed Forces Expeditionary Medal for service in Korea. With regard to his claimed in-service stressors, the veteran reported that while he was serving on patrol along the Imjin River in the Korean Demilitarized Zone (DMZ), he witnessed the use of a grappling hook to check for booby traps and retrieve the body of a North Korean man who was shot and killed by other guards on patrol. In a June 2004 letter, the veteran placed the event as having occurred between January and April 1968. The veteran further claimed, in his November 2004 VA Form 9, that the incident was made more stressful because he had been on patrol in sub-zero temperature conditions for many nights in a row. As a second in-service stressor, the veteran also reported witnessing and assisting in the removal of the body of a civilian who was run over by a tank, although he did not provide a specific date of occurrence for this event. To corroborate the incident involving the shooting of a North Korean man, the veteran has submitted a statement from a comrade who witnessed the incident as well. The buddy statement documents the incident in detail and identifies it as occurring in January 1968, likely in the latter part of the month. The veteran's comrade places the veteran at the scene and identifies the general location in which the event occurred. The evidence, as noted above, thus reflects that the veteran witnessed an incident in Korea during the month of January 1968 in which a North Korean was shot by United States Army servicemen and his body retrieved with grappling hooks. It appears to the Board that this information is sufficiently specific to allow further inquiry into whether military records are available documenting the event. The veteran has not, however, provided sufficient detail to warrant investigating his second alleged in-service stressor-the witnessing of a civilian being run over by a tank. Therefore, the veteran should be given another opportunity to provide further information concerning the incident in which he witnessed a civilian being run over by a tank. The Board is mindful that such an incident involving a civilian may be difficult to verify through unit records or other official documentation. It is thus crucial that the veteran provide as much detail as possible about the incident, to include the location of the incident; the civilian's name, if available; and the date (within a 60-day period) on which the incident occurred. Moreover, the veteran should be invited to submit additional buddy statements from individuals who know of the claimed stressor incidents or witnessed such incidents. VA's duty to assist includes suggesting to the veteran that he write to fellow soldiers asking for letters supportive of his PTSD claim. See Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). After providing the veteran another opportunity to present information and/or evidence that would assist in verifying the claimed in-service stressors, the RO should prepare a report detailing those stressors identified in the veteran's claims file and contact the United States Army and Joint Services Records Research Center (JSRRC) (formerly the United States Armed Services Center for Unit Records Research (CURR)), and any other appropriate source(s), for verification of the claimed stressor(s). The Board notes in particular that the veteran has already provided sufficient information for the RO to request that JSRRC undertake research to verify the occurrence of the January 1968 shooting of the North Korean man by an Army patrol from Company A, 1st Battalion, 72nd Armor, 2nd Infantry Division. The veteran has also identified as an in-service stressful experience his witnessing the death of a civilian who was run over by a tank. That stressor should be verified with the JSRRC or other sources if the veteran provides sufficient identifying information to make such research possible. Such identifying information would include the name of the civilian, if available; the location of the incident; and the date it took place (within a 60-day range). The agency of original jurisdiction (AOJ) is reminded that requiring corroboration of every detail, including the veteran's personal participation, defines "corroboration" far too narrowly. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). The records need only imply the veteran's participation (e.g., not controvert the veteran's assertion that he was present when the events the records establish that his unit experienced occurred). See also Pentecost v. Principi, 16 Vet. App. 124, 128-129 (2002). In Suozzi, the United States Court of Appeals for Veterans Claims (Court) held that a radio log showing that the veteran's company had come under attack was new and material evidence to warrant reopening a claim of service connection for PTSD, despite the fact that the radio log did not specifically identify the veteran's participation. Suozzi, 10 Vet. App. at 310. The Court also stressed that the evidence favorably corroborated the veteran's alleged in-service stressor. Id. at 311. Reaffirming its holding in Suozzi, the Court stated in Pentecost that, although unit records did not specifically identify a veteran as being present during rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred objectively corroborated his claim of having experienced rocket attacks. Pentecost, 16 Vet. App. at 128. The veteran notes that he did not report his distress at these events while in service, because "you didn't complain about those kinds of things then, you just did your duty." Post-service medical records, however, reflect that the veteran has been diagnosed by a private physician with PTSD per DSM-IV criteria, due to his experiences in service. Therefore, following the development requested above, the veteran should be scheduled for an examination for the purpose of determining whether any in-service event is sufficient to support a diagnosis of PTSD, before the claim is considered on the merits. The veteran is hereby notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2007). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)). However, identification of specific actions requested on remand does not relieve VA of the responsibility to ensure full compliance with the Act and its implementing regulations. Hence, in addition to the actions requested above, VA should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. In view of the foregoing, the case is REMANDED for the following action: 1. The veteran should be afforded an additional opportunity to provide information regarding his alleged stressful events in service. Such information should include the dates (month and year), assigned unit, and full names of those wounded or killed, if available. The veteran is advised that this information is vitally necessary, and that he must be as specific as possible, because without such detailed information, an adequate search for verifying information cannot be conducted. The veteran should also be invited to submit statements from other former service comrades or others that establish the occurrence of his alleged in-service stressful experiences. 2. Following any additional responses received from the veteran, a letter should be prepared asking JSRRC to provide any available information that might corroborate the veteran's alleged in-service stressors. If the veteran provides more specific information regarding the incident in which a civilian was run over by a tank, an attempt to verify that claimed stressor should be made. JSRRC should be provided with a description of the alleged stressor(s) identified by the veteran (as noted in the veteran's February 2004, June 2004, and November 2004 statements and his comrade's February 2005 letter), as well as copies of any relevant documents (e.g., the veteran's DA Form 20, DD Form 214, and/or any statements made by the veteran or his comrade), or information contained therein. Any additional action suggested by JSRRC should be accomplished. 3. After receiving a response from JSRRC (and any other contacted entity) and associating with the claims file all available records and/or responses received pursuant to the above-requested development, the veteran should be scheduled for VA psychological and psychiatric examination. All examiners should thoroughly review the veteran's claims file, to include a copy of this remand. Psychological testing should be conducted with a view toward determining whether the veteran in fact meets the criteria for a diagnosis of PTSD. A psychiatrist should thereafter review the veteran's claims file and test results, examine the veteran, and provide an opinion as to whether the veteran has symptomatology that meets the diagnostic criteria for PTSD. The examiner should identify the specific stressor(s) underlying the diagnosis and should comment upon the link between the current symptomatology and the veteran's stressor(s). A complete rationale should be provided for all opinions expressed. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the claim on appeal should be adjudicated in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the veteran and his representative must be furnished an appropriate supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified. The veteran has the right to submit additional evidence and argument on the matter 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 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. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).