Citation Nr: 0810713 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 06-17 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran served on active duty from February 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In January 2008, the veteran testified during a hearing before the undersigned at the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Additional development is necessary before these claims can be decided. In a December 2004 stressor statement and at his hearing, the veteran claimed that his base came under mortar attack during service. At his hearing, the veteran testified that mortar attacks occurred soon after he arrived in Vietnam. However, the veteran has not provided specific dates of these incidents. This is a stressor that may be capable of verification. See Pentecost v. Principi, 16 Vet. App. 124 (2002) (mortar/rocket attack may in some cases be a satisfactory stressor for PTSD). Service connection for PTSD requires medical evidence establishing a diagnosis of PTSD, according to DSM-IV criteria, credible supporting evidence that the claimed in- service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. See 38 C.F.R. § 3.304(f) (2007). The Board notes that the record contains multiple diagnoses of PTSD. However, the veteran's claimed stressors have not been verified. As the veteran did not engage in combat, the alleged stressors must be verified by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). In March 2007, the RO made a formal finding on a lack of information required to verify stressors. At the January 2008 hearing, the veteran provided further detail that warrants another attempt at verification of the claimed stressors. For example, the veteran noted the unit he was in while in Vietnam (a missing detail cited in the RO's March 2007 finding) and gave a more specific time period during which the mortar attacks reportedly occurred ("right after I got [to Vietnam]"), see transcript pg. 8. On remand, the veteran should be requested to provide approximate dates of the incidents. If the veteran provides the requested information, the RO should attempt to verify the stressors through the U.S. Army & Joint Services Records Research Center (JSRRC). Additional development is also necessary with regard to the claim of entitlement to service connection for degenerative disc disease of the lumbar spine. The report of the February 1966 enlistment physical reflects that the veteran reported a history of low back aches. A lumbar spine x-ray showed no osseous pathology and normal width of disc space. Service medical records show that the veteran was seen in February 1966 and November 1966 with complaints of lumbar pain. A February 1966 entry noted palpable tenderness and muscle spasm. It's also noted that the veteran injured his back in a 1996 motor vehicle accident. In a July 2005 statement, a private physician noted that the veteran had back problems since service that were "asymptomatic" until the 1996 accident. The duty to assist requires VA to provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1) (West 2002). McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Because complaints of back pain were noted during active duty service, a VA medical examination is necessary to determine whether a current lumbar spine disability is related to service. The veteran had a general VA examination in January 2005 which included a diagnosis of herniated intervertebral discs at L4-5 and L5-S1 with left sciatica; however, the examiner did not provide an opinion regarding whether this condition is related to service. Accordingly, the case is REMANDED for the following action: 1. Request that the veteran provide any additional information that he can remember regarding his claimed stressor of mortar attacks. The veteran should be asked to provide locations of these events and approximate dates. The veteran and his representative are instructed that searches are made in two-month intervals, so the veteran must specify a two-month period. 2. Forward the veteran's statements of alleged PTSD stressors, as well as copies of his available service personnel records and any other relevant evidence, to the U.S. Army & Joint Services Records Research Center (JSRRC), and request that JSRRC attempt to verify the alleged stressors. 3. Thereafter, if, and only if one or more of the alleged stressors is verified, schedule the veteran for a VA psychiatric examination for the purpose of ascertaining whether PTSD found present is related to service. a. Prior to the examination, specify for the examiner the stressor or stressors that is/are established by the record, and the examiner must be instructed that only that/those event(s) may be considered for the purpose of determining whether the veteran was exposed to one or more stressors in service. The veteran's claims file should be made available to the examiner, and the examiner should indicate in the examination report that the claims file was reviewed. b. The examiner should conduct the examination with consideration of the current diagnostic criteria for PTSD. The examination report should include a detailed account of all pathology present. Any further indicated special studies, including psychological studies, should be accomplished. c. If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiner. Any opinions expressed by the examiner must be accompanied by a complete rationale. d. If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the veteran's military service. 4. Schedule the veteran for a VA orthopedic examination. The veteran's claims file should be made available to the examiner, and the examiner should indicate in the examination report that the claims file was reviewed. Following a thorough examination, the examiner is asked to provide an opinion as to the following questions: a. What is the veteran's current lumbar spine diagnosis? b. Did the veteran have a lumbar spine disorder prior to his entry into service? c. If so, was the lumbar spine condition(s) aggravated or increased beyond normal progression during or due to the veteran's military service? d. If a lumbar spine disorder(s) did not exist prior to service, is it at least as likely as not related to the veteran's periods of active service, including the documented complaints of back pain during service? In answering this question, the examiner should comment on the effects of a 1996 motor vehicle accident and the July 2005 statement from the private physician who noted that the veteran's back condition was "asymptomatic" until that accident. The examiner should provide a detailed rationale for the opinion expressed. 5. After the development ordered above is completed, the RO should re-adjudicate the claims on appeal based on all of the evidence of record. If the disposition of the claim remains unfavorable, the RO should furnish the veteran and his representative a supplemental statement of the case and afford them an applicable opportunity to respond. Thereafter, the case should be returned to the Board for further review, if otherwise in order. 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 Supp. 2007). _________________________________________________ M. E. LARKIN 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).