Citation Nr: 1761180
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 14-43 955 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by: John P. Dorrity, Agent

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

B. Bodi, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1975 to December 1977.

This matter is before the Board of Veterans Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in January 2017. A copy of the hearing transcript has been associated with the claims file.

In February 2017, the Board remanded the Veteran’s claim for further development. The remand required the RO to take appropriate steps to request VA records, SSA records, and to afford the Veteran a VA psychiatric examination. In compliance with the remand directives, a September 2017 VA examination was obtained.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.

REMAND

A remand is necessary for additional development.

In a June 1975 Report of Medical History, the Veteran indicated that his health was “excellent” and “no medications used.” He denied depression or excessive worry and nervous trouble of any sort. A July 1975 Report of Medical History was clinically normal for psychiatric evaluation. An August 1977 Report of Medical History was clinically normal for psychiatric evaluation.

The Veteran’s contemporary Service Personnel Records (SPRs) indicate that effective January 1977 he was a Clerk Typist with the HHD 205th Transportation Battalion in Germany. His SPRs show misconduct for language in July 1977. In November 1977 he was recommend for expeditious discharge from the 205th Transportation Battalion.

A March 2012 Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder indicates that the Veteran’s company commander always harassed him while he was stationed in Germany. He was made to stand at attention for over “9 half hour.” He was also coming home from the Post-Exchange (PX) and was “bumped (into).”

A September 2012 Social Security Administration (SSA) Disability Determination Explanation based upon a July 2012 report shows that the Veteran was found to be disabled for psychiatric as well as a back disabilities.

VA treatment records show ongoing treatment for an acquired psychiatric disorder. A July 2010 VA Mental Health Note shows an impression of Depressive Disorder NOS. The Veteran seemed to be ever so slightly better. The treatment record indicates that the Veteran feels less anxious and seems somewhat brighter. He is compliant with medications and encouraged to continue to take medications to observe full effects. He denied side effects. A November 2010 VA treatment record was substantially the same, with an impression of depression. A November 2013 VA treatment record indicates a PTSD screening test was negative. A November 2014 VA treatment record indicated an impression of depression. The Veteran was advised to abstain from alcohol and drugs.

The Veteran’s May 2017 Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder indicates that he worked as a clerk in the hanger of the 205th Transportation Battalion. He was assigned there from January 1977 to December 1977 in Germany. In the time frame he stated, he was on a smoke break with a friend, and after about ten minutes, a helicopter hit the pad in front of the hanger. It was about one hundred feet off of the ground. It then had a main rotor mast failure and plummeted to the ground. It burst into flames. The pilot was killed. The Veteran stated that he was so close that it singed his hair. He feared for his life.

The Veteran testified in January 2017 that he believes two stressful events led to his psychiatric condition. He testified that he receives ongoing psychiatric care at the James A. Howard VA Community Based Outpatient Clinic in Brick, New Jersey. He takes quite a few antidepressants and anti-anxiety medications. He testified that while stationed with an aviation battalion in Germany he was approximately 100 to 200 yards away from a cannon firing/aircraft accident on a flight line where multiple people were injured or killed. He reported that the incident involved two OH58 Cobra helicopters that crashed into each other. He also reported that he was sexually assaulted in the barracks at Fliegerhorst Kaserne, Hanau, Germany in 1976. He was in the room drinking, passed out, going to sleep, when he woke up and found someone performing oral sex on him. He did not report it because he was ashamed. The Veteran testified that he has been on Supplemental Security Income (SSI) because he cannot work. This is due to a psychological condition and his back. He testified that he has no social life or friends.

The Veteran was afforded a September 2017 VA examination. The Veteran reported that following his alleged MST, he initially remained socially active with his peers. However, he stated that following the assault, he withdrew from everyone and isolated himself. The Veteran also reported that prior to his MST/assault, he drank socially, but denied abusing alcohol. He denied all other substance use prior to his assault. Following his MST/assault, the Veteran reported that he began abusing alcohol to self-medicate.

The September 2017 VA examiner noted that the Veteran presented with symptoms of PTSD and depression. She opined that the Veteran’s PTSD is at least likely as not due to the reported MST assault that occurred in service. She based her opinion on the fact that the Veteran has no other reported trauma events that would account for his PTSD symptoms and his symptoms are consistent with the described MST assault. She opined that Veteran’s PTSD is at least likely as not due to the reported MST assault that occurred during his military duty. She explained that the belief that Veteran’s PTSD is due to his reported MST trauma is based on his report of the assault and subsequent alcohol abuse; social withdrawal; and military disciplinary reports. She noted that the Veteran’s record shows multiple Article 15 reports, supporting the Veteran’s claim that he began having behavioral problems following his assault. She explained that there is no other reported trauma event that would account for the reported PTSD symptoms. She opined that the Veteran’s Major Depressive Disorder (MDD) and Alcohol Use Disorder diagnosis at least likely as not had their onset during service. She explained that the Veteran reported that onset of all psychiatric symptoms began immediately following his MST assault, and his MDD and alcohol use are both secondary to his PTSD.

The Veteran asserts that he has a present psychiatric disorder, to include PTSD, that is due to events in service.

A remand is necessary to verify the Veteran’s specific reported in service stressors, to resolve any inconsistencies, and to further develop his claim. It is unclear if the Veteran witness one helicopter crash, or two separate incidents. It is also unclear if one or two helicopters were involved. In addition, his reports in the September 2017 VA examination of no other relevant history are inconsistent with his other statements of record. Consequently, a remand is necessary to further develop the Veteran’s reported stressors.

Accordingly, the case is REMANDED for the following actions:

1. If the Veteran identifies other evidence, obtained
updated VA treatment records and associate them with the claims file.

2. Send a summary of the Veteran’s alleged stressful
event(s) of two helicopters crashing into each other, as well as a single helicopter crash, while he was stationed in Germany from January 1977 to December 1977, and a copy of his DD Form 214 to the JSRRC. The JSRRC should be requested to provide any additional information that might corroborate the alleged stressful incident(s).

This should include whether there was a single helicopter crash into the pad, and/or two helicopters crashing into each other.

Please make a specific reference to his January 2017 testimony regarding two OH58 Cobra helicopters crashing into each other, resulting in loss of life.

All attempts to obtain this information must be documented in the Veteran’s claims file.

3. Send the Veteran an additional development letter
requesting him to verify whether he witnessed one or two separate incidents, and whether these included a single or multiple helicopters. Also request that he verify the type of helicopters involved, to the best of his recollection. Notify the Veteran that he should respond to this letter.

4. After the Veteran’s reported circumstances of the
helicopter crash(es) have been clarified, arrange for the Veteran to undergo a VA examination by an appropriate examiner. The entire claims file must be made available to the examiner. The report of the examination should include a discussion of the Veteran’s documented medical history and assertions and all clinical findings should be reported in detail. The examiner should answer the following questions:

(a) Does the Veteran have an acquired psychiatric disorder to include, PTSD? Please identify any such diagnoses.

(b) If there is PTSD, is it at least as likely as not (a 50
percent probability or greater) that the Veteran’s diagnosis of PTSD is related to his active duty?

If PTSD is diagnosed, the examiner must identify the
stressor(s) supporting the diagnosis. The examiner should provide an opinion as to whether the Veteran’s diagnosis of PTSD is supportable solely by the stressor(s) that has (have) been verified or established in the record.

(c) If the Veteran is diagnosed with any other acquired psychiatric disorder, to include depression and or anxiety, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s acquired psychiatric disorder is related to or had its onset in active duty?

Attention is directed to the Veteran’s claim (1) of being “bumped,” (2) witnessing 1 or 2 helicopters collide in 1 or 2 incidents (depending on prior verification above), and (3) an incident of MST in the barracks.

Attention is also directed to the September 2017 VA examination in which the Veteran reported no other relevant history, which is inconsistent with what he has previously reported.

5. After the development requested above has been
completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto.

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 2014).

_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).

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