13-30 943
13-30 943
Board of Vet. App.Aug 31, 2017Background
- Veteran served on active duty 12/1952–12/1956 and seeks service connection for a psychiatric disorder, including PTSD.
- Veteran alleges three in-service traumatic stressors at Bergstrom AFB (aircraft collisions/fatal burns/landing crash in 1953, 1955, 1956) but cannot identify names; provided squadron numbers and unit assignment in statements (2010, 2011, 2014).
- Veteran’s service treatment records were destroyed in the 1973 NPRC fire; RO notified him of unavailability in 2010.
- Board previously remanded (Sept 2014, Oct 2015) directing the RO to send the Veteran’s stressor information to the Joint Services Records Research Center (JSRRC) and to schedule VA examinations if stressors were verified; the RO failed to comply with remand instructions multiple times.
- Because the RO did not attempt verification, the Board ordered a further remand: RO must attempt verification (JSRRC and any other agency), make a specific service-exposure finding, and, if any stressors are verified, obtain a VA PTSD exam (DSM‑IV); regardless of verification, obtain a VA mental-health exam for other psychiatric disorders and then readjudicate and issue a SSOC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RO complied with prior Board remands to verify claimed in‑service stressors | Veteran: RO must send his statements to JSRRC and other agencies to verify stressors | RO: previously determined insufficient information to send to JSRRC (and thus did not verify) | Board: RO failed to comply; remand required to attempt verification and document efforts |
| Whether VA must provide PTSD exam if stressors are verified | Veteran: If stressors verified, he must receive PTSD exam and nexus opinion | VA: (implicit) will provide exam only if verification occurs | Board: If any stressor verified, VA must provide PTSD exam under DSM‑IV and obtain nexus opinion |
| Whether VA must provide exam for other psychiatric disorders even if stressors unverified | Veteran: Entitlement to non‑PTSD psychiatric service connection still requires nexus and exam | VA: (implicit) may limit development when stressors unverified | Board: Regardless of stressor verification, VA must provide mental‑health exam for non‑PTSD disorders and nexus opinions |
| Whether VA must readjudicate and issue SSOC after development | Veteran: After development, claim must be readjudicated and claimant given SSOC | VA: (implicit) prior failures to readjudicate noted | Board: RO must readjudicate, issue SSOC if claim remains denied, then return case to Board |
Key Cases Cited
- O'Hare v. Derwinski, 1 Vet. App. 365 (recognizing heightened VA duty to assist where records unavailable)
- Washington v. Nicholson, 19 Vet. App. 362 (clarifying VA's heightened duty when service records destroyed)
- Russo v. Brown, 9 Vet. App. 46 (heightened assistance does not lower standard of proof)
- Ussery v. Brown, 8 Vet. App. 64 (same principle regarding burden of proof)
- Stegall v. West, 11 Vet. App. 268 (remand directives must be complied with by RO)
- Clemons v. Shinseki, 23 Vet. App. 1 (PTSD claim encompasses all psychiatric disorders)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant may submit additional evidence after remand)