Citation Nr: 9931410 Decision Date: 11/04/99 Archive Date: 11/17/99 DOCKET NO. 95-39 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Gallagher, Counsel INTRODUCTION The veteran had active service from May 1968 to December 1969, including service in the Republic of Vietnam, and periods of active duty for training with the National Guard. This matter came before the Board on appeal from an October 1994 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The veteran appeared at a personal hearing before a Hearing Officer at the RO in August 1995. In December 1998, the Board remanded the case so that the veteran could be afforded a personal hearing before a Member of this Board sitting at the RO. That hearing was held on August 1999. As noted in the remand portion of this decision and remand, the Board has found that the development of additional evidence would be helpful prior to rendering a decision on this appeal. FINDINGS OF FACT 1. The veteran has been diagnosed as suffering from post- traumatic stress disorder, due to stressors he experienced during his active service in Vietnam during the Vietnam Era. 2. The veteran has submitted a plausible claim for service connection for post-traumatic stress disorder. CONCLUSION OF LAW The veteran has submitted a plausible claim for service connection for post-traumatic stress disorder. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran asserts that he was exposed to stressors during his active service in Vietnam which led to the development of post-traumatic stress disorder (PTSD). In support of his claim, he has submitted written statements and hearing testimony describing his asserted stressors. Among the stressors he lists are the following: 1) while serving as an S-2 intelligence officer with the 3rd Battalion, 34th Artillery, 9th Infantry Division, in late March 1969, he was returning to the base at Dong Tam when his small convoy came across a group of enemy soldiers setting up an ambush. Fire was exchanged, and the driver of the security detail accompanying his group, a soldier from the 1st Battalion, 84th Artillery who had been assigned to assist him, was seriously injured or killed by a Claymore mine. 2) During the period when the 9th Infantry was in the process of withdrawing its troops from Dong Tam, and ultimately from Vietnam, (which the veteran recalls as having taken place from mid-May to mid-June 1969) the base at Dong Tam was hit every night by enemy rockets and mortar rounds; the veteran was present during many of these attacks. 3) On May 15, 1969, the veteran traveled to see the S-2 officer of the 1st Battalion, 84th Artillery. He was accompanied by his driver SFC Mitchell as well as a group of soldiers from the 1st Battalion, 84th Artillery who were also on their way to the 1st/84th headquarters. Their group was hit by mortar fire lasting about three minutes. They took cover in a ravine, but when the veteran turned around to see who was immediately behind him he saw a young soldier from the 1st/84th, perhaps 18 or 19 years old, who had been hit in the face by enemy fire and killed. That young soldier had been in country only about three weeks at the time he was killed. 4) One night during the period when the 9th Infantry was in the process of withdrawing its troops from Vietnam (which the veteran recalls as having taken place from approximately mid-May to mid-June 1969) Cobra helicopters were ordered up by the Dong Tam base commander on a search and destroy mission in an effort to reduce the number of enemy mortar and rocket attacks hitting Dong Tam. One of the Cobra helicopters was hit by friendly fire from another Cobra. The damaged Cobra exploded in a tremendous fireball about 400 meters away from Dong Tam. The veteran went with an infantry platoon to recover the remaining pieces of the bodies of the two helicopter crewmembers who were killed in that explosion. The Board notes that from January 1967 through August 1969, the 9th Infantry Division at Dong Tam was supported by the following units assigned to the 9th Aviation Battalion: Company A AirMobile, Company B AirMobile, and Troop D, 3rd Squadron, 5th Cavalry (Air Cavalry). The Board further notes that the names inscribed on the Vietnam Veteran's Memorial include the following servicemen who died while flying in AH- 1G Huey Cobra attack helicopters: Incident Date: June 25, 1969 William Michael Elbracht, Aircraft Commander, Troop D, 3rd Squadron, 5th Cavalry Roy Kenneth Williams, Jr., Pilot, Troop D, 3rd Squadron, 5th Cavalry Incident Date: August 20, 1969 Martin Lester Taber, Aircraft Commander, Troop D, 3rd Squadron, 5th Cavalry James Richard Waldowski, Pilot, Troop D, 3rd Squadron, 5th Cavalry Documents contained in the claims file show that the veteran received treatment at the Brighton Marine Public Health Center in Brighton, Massachusetts during the period from January 1986 through May 1990 for psychiatric problems listed as post-traumatic stress disorder and a panic disorder with agoraphobia. In November 1993, the veteran filed a claim for entitlement to service connection for post-traumatic stress disorder. The report of the veteran's August 1994 VA psychiatric examination listed a diagnosis of post-traumatic stress disorder. In October 1994, the RO denied the veteran's claim for service connection for post-traumatic stress disorder on the grounds that it had been unable to verify the veteran's claimed stressors. Upon consideration of all the evidence presented, the Board finds that the veteran's claim is well-grounded; that is, accepting the statements of record as plausible, there is evidence of a current disability, and a nexus between the current disability and the veteran's active service. See generally Caluza v. Brown, 7 Vet.App. 498 (1995). The VA accordingly has a duty to assist the veteran in the development of his claim. ORDER The veteran's claim for service connection for post- traumatic stress disorder is well-grounded. REMAND Prior to rendering a decision on the veteran's appeal, the Board believes it would be helpful to attempt to ascertain if either William Michael Elbracht, Aircraft Commander, Troop D, 3rd Squadron, 5th Cavalry, or Roy Kenneth Williams, Jr., Pilot, Troop D, 3rd Squadron, 5th Cavalry, or Martin Lester Taber, Aircraft Commander, Troop D, 3rd Squadron, 5th Cavalry, or James Richard Waldowski, Pilot, Troop D, 3rd Squadron, 5th Cavalry, might be the servicemen the veteran described as having been killed when their helicopter went down in a fireball near Dong Tam. Therefore, the Regional Office (RO) should contact the U.S. Armed Services Center for Research of Unit Records and attempt to verify the veteran's stressors described above in the decision portion of this decision and remand. The Board notes that the RO did contact the former U.S. Army & Joint Services Environmental Support Group (ESG) in an attempt to verify certain of the veteran's stressors. However, it appears that the ESG checked the Operation Reports-Lessons Learned and Historical Report of the 3rd/34th Artillery for casualty lists, rather than checking the corresponding reports for the 1st/84th Artillery. Additionally, the ESG indicated to the RO that a copy of the veteran's DA Form 66 would be helpful if they were asked to perform further record searches. The Board further notes that the veteran's complete service medical records, and his complete official military personnel file including his DA Form 66 have not yet been obtained for inclusion in the claims file. Although it appears the RO contacted the National Personnel Records Center (NPRC) in an attempt to obtain these copies, the NPRC replied in December 1994 that the records were not available at that time. The NPRC then suggested that the RO file another request for the records in 90 days, enclosing a copy of the veteran's DD-214, if available. It does not appear that the RO has yet done so. The Board believes that the RO should make another attempt to obtain copies of those records while this case is on remand. Therefore, to ensure that the Department of Veterans Affairs (VA) has met its duty to assist the veteran in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should make another attempt to obtain copies of the veteran's complete service medical records and his complete service personnel file, including his DA Form 66, for inclusion in the claims file for review. 2. Upon completion of the development requested in paragraph 1 above, to the extent possible, the RO should contact the U.S. Armed Services Center for Research of Unit Records (USASCRUR), send USASCRUR a copy of the veteran's DA Form 66 if available, and request that it undertake to verify the veteran's claimed stressors, including, but not limited to: a) checking the Unit Reports, Morning Reports, Lessons Learned and any other pertinent records, for the 1st Battalion, 84th Artillery for the period from March 1, 1969 to June 30, 1969, to ascertain if the wounding or death of any servicemen assigned to assist the 3rd Battalion, 34th Artillery, are listed therein, and, b) checking the Unit Reports, Morning Reports, Lessons Learned, and any other appropriate records from the 3rd Battalion, 34th Artillery, the HHC & Band DISCOM of the 9th Infantry Division, and any other appropriate units, to determine if there were enemy rocket and mortar attacks at Dong Tam during the time the veteran was stationed at that base, c) checking the Unit Reports, Morning Reports, Lessons Learned, and any other appropriate records from Company A AirMobile, Company B AirMobile, and Troop D, 3rd Squadron, 5th Cavalry (Air Cavalry) for the period from May 1, 1969 through August 31, 1969 to determine if any of the soldiers assigned to those units were killed while flying in a Huey Cobra helicopter near Dong Tam, and d) checking all pertinent records relating to the deaths of William Michael Elbracht, Aircraft Commander, Troop D, 3rd Squadron, 5th Cavalry (Incident Date: June 25, 1969), Roy Kenneth Williams, Jr., Pilot, Troop D, 3rd Squadron, 5th Cavalry (Incident Date: June 25, 1969), Martin Lester Taber, Aircraft Commander, Troop D, 3rd Squadron, 5th Cavalry (Incident Date: August 20, 1969), and James Richard Waldowski, Pilot, Troop D, 3rd Squadron, 5th Cavalry (Incident Date: August 20, 1969) to ascertain if any of these soldiers were killed near Dong Tam while flying in a Huey Cobra helicopter. 3. Upon completion of the development requested in paragraph 2 above, to the extent possible, if the response from USASCRUR indicates that additional information is needed to verify the veteran's claimed stressors, pursuant to the Court of Veterans Appeals' statements in the case of Cohen v. Brown, 10 Vet.App. 128, 148 (1997), a copy of that response should be provided to the veteran and his representative so that he can, if possible, provide such additional information as may be needed to verify his stressors. 4. After completion of all the above- requested development, to the extent possible, the RO should examine the record to determine if it establishes the existence of a stressor or stressors; if the existence of a stressor or stressors is established, then the veteran should be scheduled for a VA psychiatric examination, by a VA psychiatrist experienced in evaluating PTSD to determine the diagnoses of all psychiatric disorders that are present. The originating agency must furnish the examiner a complete and accurate account of 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 in- service stressors were severe enough to have caused the current psychiatric symptoms and whether the diagnostic criteria to support the diagnosis of post-traumatic stress disorder have been satisfied by the in-service stressors. The diagnosis should conform to the psychiatric nomenclature and diagnostic criteria contained in DSM-IV. If the veteran is found to have post-traumatic stress disorder, the examiner is requested to identify the diagnostic criteria, including the specific stressor or stressors supporting the diagnosis. A complete rationale should be given for all opinions and conclusions expressed. 5. Upon completion of the development requested above 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 and given the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).