Citation Nr: 1031272 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 04-44 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The Veteran (appellant) had active military service from November 1965 to November 1967. He also had periods of service with the Georgia Army National Guard following his separation from active duty. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, in which the RO denied the Veteran's claim for service connection for posttraumatic stress disorder. The Veteran timely appealed the denial of his claim to the Board, which remanded the case to the RO via the RO in Huntington, West Virginia, in April 2006 and August 2008 for further notification, evidentiary development, and adjudication. The Board instructed the RO to seek to corroborate the Veteran's claimed in-service stressors, provide the Veteran with a psychological examination, and then re-adjudicate the claim. The RO attempted to verify the Veteran's stressors and scheduled the Veteran for a VA examination, which was conducted in February 2009. The Veteran was then provided a supplemental statement of the case (SSOC) in November 2009, in which the RO again denied the Veteran's service connection claim. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In this instance, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently held that, although an appellant's claim identified posttraumatic stress disorder without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors-including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his claim seeking service connection for post-traumatic stress disorder specifically, the Board notes that the Veteran has been diagnosed with and sought treatment for multiple acquired psychiatric disorders, including posttraumatic stress disorder, depression, and anxiety. The Board thus finds that, pursuant to Clemons, supra, the Veteran's service-connection claim is more accurately classified as one for an acquired psychiatric disorder, to include posttraumatic stress disorder. See Clemons, 23 Vet. App. 1 (2009). The Veteran testified before the undersigned Acting Veterans Law Judge at a videoconference hearing in December 2005. A transcript of the hearing has been associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2010). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Kent v. Nicholson, 20 Vet. App. 1 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). In addition, certain chronic diseases, such as psychoses, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). The Veteran has contended that he has PTSD as a result of multiple stressors. The RO previously denied the Veteran's claim on the basis that it was unable to verify his claimed in-service stressors and that he did not carry a clear diagnosis of PTSD. Service connection for post-traumatic stress disorder (PTSD) requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Where it is determined that a Veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the Veteran's lay testimony regarding the claimed stressor is accepted as conclusive as to its actual existence, absent clear and convincing evidence to the contrary. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f). However, if, as in the present case, the Veteran did not engage in combat, his alleged stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The regulatory requirement of "credible supporting evidence" means that "the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). Additionally, if a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010). For purposes of this section, "fear of hostile military or terrorist activity" means that "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, . . . and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." 75 Fed. Reg. at 39,852. Relevant evidence of record consists of the Veteran's service treatment and personnel records and records of his post-service treatment at the Carl Vinson VA Medical Center (VAMC) in Dublin, Georgia. The Veteran was also provided a VA examination in February 2009. The Veteran's service treatment records are silent as to any complaints of or treatment for psychiatric concerns during service. Review of these records shows that he was found to be normal psychiatrically at his October 1965 pre- induction medical examination, and he did not complain of any psychiatric symptoms at the report of medical history conducted at the time. Similarly, at his November 1967 separation report of medical history, the Veteran responded "No" when asked if he experienced any psychological problems, and the November 1967 separation examination noted that clinical psychiatric evaluation was normal. The record further reflects that the Veteran has been seen many times after military service for treatment of what has been primarily diagnosed as PTSD. The record contains medical treatment records from the Dublin VAMC beginning as early as March 2001, at which time the Veteran was assigned a diagnosis of PTSD. Since 2001, the Veteran has received ongoing psychiatric care from VA treatment providers at the Dublin VAMC, including both inpatient and outpatient treatment for PTSD. At an August 2002 treatment visit, the Veteran's disability was specifically identified as "PTSD, from Vietnam." He was given also a diagnosis of depression and anxiety in June 2004 by a VA treatment provider, although that diagnosis has not been repeated during the Veteran's extensive psychological treatment at the Dublin VAMC. In addition, the Veteran has submitted written statements attesting to his belief that his PTSD is due to a number of claimed in-service stressors. In particular, the Veteran contends that he experienced firefights while stationed in the Republic of Vietnam; he has also described an incident in which he traded shifts with another truck driver, who was then killed when he drove over a land mine, and an incident in which he watched several fellow soldiers be carried away by a swift river current as they attempted to escape a boat stuck on a sandbar and taking enemy fire. The Veteran testified before the undersigned Veterans Law Judge in December 2005, at which time he reiterated these stressors and again claimed that he believes these experiences led to his current PTSD. The Veteran was afforded a VA psychiatric examination in February 2009. The examination report recounted the Veteran's military, social, and medical history in considerable detail, including a recounting of his claimed in-service stressors. The examiner noted the Veteran's complaints of recurrent thoughts of his traumatic experiences in Vietnam as well as sleep disturbance and occasional depressed mood. The examiner further noted the Veteran's reported in-service stressors, as outlined above, and recounted his post-service psychiatric treatments, noting in particular that he has been specifically diagnosed with PTSD. The examiner, however, concluded that the Veteran did not have PTSD or any other diagnosable psychiatric disorder, finding that although the Veteran "reported some symptoms common to PTSD, his reported experiences do not meet the standard for traumatic experiences according to DSM-IV." In so finding, the examiner explicitly considered each of the Veteran's three claimed stressors and nevertheless concluded that none satisfied the DSM- IV criteria. The examiner acknowledged that the Veteran demonstrated some psychiatric symptoms but opined that these problems were "likely transient and expected reactions to psychosocial stressors and not caused by his military service." Initially, as noted above, there is no evidence that the Veteran engaged in combat with an enemy force. In fact, the Veteran himself has not asserted that he engaged in combat. However, in this case, the Veteran's DD Form 214 confirms that he served in the Republic of Vietnam, as evidenced by his receipt of the Vietnam Service Medal and the Vietnam Campaign Medal. The Board finds that, under the new 38 C.F.R. 3.304(f)(3), the Veteran thus had "service in a location that would involve 'hostile military or terrorist activity'." VBA Training Letter 211B (10-05), dated July 16, 2010. The Board further finds that the Veteran's claimed stressors, involving experiencing enemy fire, witnessing the death of comrades, and learning of the death of a fellow driver due to an explosive device, are consistent with the places, types, and circumstances of the Veteran's service; thus, the Veteran's lay statements alone are sufficient to corroborate the stressors. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843-44. Regarding diagnosis of the Veteran's mental disabilities, in the instant case, the Board acknowledges that the evidence suggests that the Veteran has been diagnosed with PTSD. In that connection, the Board notes that the Veteran was assigned a PTSD diagnosis at his March 2001 VAMC intake visit, although it is not clear from the record whether the physician assigning that diagnosis was a psychiatrist or psychologist. Similarly, at his May 2008 VAMC inpatient treatment, the Veteran was specifically assigned a diagnosis of PTSD related to his experiences in Vietnam, but the diagnosis was made not by a VA psychiatrist or psychologist, but by a physician's assistant. The Board further notes that although the Veteran was provided a VA examination in February 2009, it is unclear from the report whether the examiner properly considered that the Veteran's stressors are confirmed; in the report, the examiner noted that the Veteran's report of his stressors had "varied over time," calling into question whether the examiner found the stressors credible. It is also unclear that the examiner adequately considered the Veteran's confirmed stressors in a manner consistent with the new 38 C.F.R. 3.304(f)(3), which requires examiners to address whether the Veteran's symptomatology is related to "fear of hostile military or terrorist activity." See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843-44; VBA Training Letter 211B (10-05), dated July 16, 2010. The Board further notes that although the February 2009 VA examiner did not provide a diagnosis of any psychiatric disorder, he did note that the Veteran had some symptomatology, which he acknowledged could be related to the Veteran's service in Vietnam. Further, the Board notes that the record does reflect that the Veteran has been assigned service-related PTSD diagnoses by several VA clinicians. In light of this, and because the record does not reflect that the Veteran has been diagnosed with PTSD specifically by a VA or VA-contracted psychiatrist or psychologist who confirms that the identified stressors are adequate to support a diagnosis of PTSD, the Board finds it necessary to secure a new examination to ascertain whether the Veteran in fact has PTSD that is a result of his identified in- service stressors or otherwise suffers from an acquired psychiatric disorder related to service. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010); see also 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2010); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). Thus, on remand, the Veteran must be afforded a VA examination in order to obtain a current diagnosis based on both an examination and a thorough review of his claims file. Specifically, the Veteran must be afforded a psychiatric evaluation by a VA or VA- contracted psychiatrist or psychologist, to include particular attention to the PTSD diagnoses made as a result of VAMC treatment. In the report, the examiner must address the relationship between any diagnosed PTSD and the Veteran's in- service stressors and must specifically discuss whether the Veteran's identified stressors are related to his fear of hostile military or terrorist activity; whether the identified stressors are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressors. Further, under Clemons, supra, in order to properly assess the Veteran's claim for an acquired psychiatric disorder, to include PTSD, on remand the AOJ must schedule him for a VA psychiatric examination in order to determine the current diagnosis or diagnoses of his claimed acquired psychiatric disorder(s). In addition to conducting a psychiatric examination, the designated examiner must provide a medical nexus opinion with respect to any identified acquired psychiatric disorder. The opinion must address whether the Veteran has an acquired psychiatric disorder that is attributable to his active military service. Such an opinion is also important in view of the evidence contained in the Veteran's post-service treatment records, which indicate that he has a current diagnosis of anxiety disorder in addition to his diagnosed PTSD. In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran and his representative must be sent a letter requesting that the Veteran provide sufficient information, and if necessary authorization, to enable any additional pertinent evidence not currently of record relating to the Veteran's claimed PTSD to be obtained. In the letter, the AOJ must provide the Veteran and his representative with the language of the new regulation, 38 C.F.R. § 3.304(f)(3). The Veteran should also be invited to submit any pertinent evidence in his possession. The AOJ must explain the type of evidence that is the Veteran's ultimate responsibility to submit. 2. After associating with the claims file all available records and/or responses received pursuant to the above-requested development, the Veteran must be scheduled for VA examination and 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) (2009). All examiner(s) must thoroughly review the Veteran's claims file, to include a copy of this remand. Psychological testing must be conducted with a view toward determining whether the Veteran in fact meets the criteria for a diagnosis of PTSD. A VA or VA-contracted psychiatrist or psychologist must review the Veteran' 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 must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s). In the report, the examiner must address the relationship between any diagnosed PTSD and the Veteran's in-service stressors and must specifically address whether the Veteran's identified stressors are related to his fear of hostile military or terrorist activity; whether the identified stressors are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressors. A complete rationale must be provided for all opinions expressed. In addition to an opinion regarding PTSD, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has any other current acquired psychiatric disorder that is related to his active military service. All opinions must be set forth in detail and explained in the context of the record. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the claim on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a 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 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. 2010). _________________________________________________ NADINE W. BENJAMIN Acting 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) (2009).