Citation Nr: 1034178 Decision Date: 09/13/10 Archive Date: 09/21/10 DOCKET NO. 06-33 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. M. Macierowski, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1968, and from May 1973 to May 1977, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran's appeal was certified to the Board in 2007. At that time, the claim had been denied, in pertinent part, because the Veteran's stressors could not be verified. The recently revised regulations with respect to PTSD, however, eliminated the requirement for stressor verification when the stressor was related to a Veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f); 75 Fed. Reg. 39,843 (July 13, 2010). The Veteran's claimed stressors, as noted in his August 2004, October 2004, and August 2006 statements, are of such a nature. The revised regulations further indicate that, in short, for a claim of PTSD to be substantiated, a VA professional, or a medical professional contracted by VA, must provide a multiaxial diagnosis of PTSD based on the claimed stressors. Id. In this case, such a diagnosis was made by a VA mental health clinician in October 2004, at which time that clinician indicated that the Veteran's PTSD was very likely combat related. However, the October 2004 VA outpatient treatment record only records the Veteran's symptoms, not his stressors. Id. The regulations, as revised, require that the diagnosis of PTSD be made based on the claimed stressors. Accordingly, the October 2004 diagnosis is insufficient with which to substantiate the Veteran's claim. Moreover, the October 2004 diagnosis does not indicate review of the Veteran's service treatment records. This is important because on his January 1964 and December 1967 reports of medical history, completed at service entrance and at service separation, the Veteran indicated that he was currently experiencing, or had a history of, depression or excessive worry. Therefore, in diagnosing the Veteran, it does not appear that the VA mental health clinician was informed of a potentially preexisting mental health condition. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that an examination must be based upon consideration of the Veteran's prior medical history and examinations). Therefore, the case must be remanded so that a VA mental disorders examination may be conducted, which must include consideration of a potential preexisting psychiatric disorder, as well as to determine the existence of other psychiatric disorders. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Finally, review of the record reveals that the service treatment records from the Veteran's second period of service, May 1973 to May 1977, are not of record. For the VA examiner to be fully informed requires that he or she also consider the Veteran's mental health history as documented during this period. Thus, these records must be obtained from the National Personnel Records Center (NPRC) and associated with the claims file. While recognizing that the reasons discussed above require a remand in this case, the Board regrets that this action must be taken, especially in light of the long period of time the Veteran's appeal has been pending. Accordingly, the case is remanded for the following actions: 1. Contact the NPRC and request the Veteran's service treatment records for his second period of service, from May 1973 to May 1977. Once these are received, associated them with the claims file. If for some reason the records are unavailable, that fact must be documented in the claims file, along with documentation of all efforts to obtain the records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of all psychiatric disorders found. The report of examination must include a detailed account of all manifestations of the psychiatric disorders found to be present. All necessary tests must be conducted and the examiner must review the results of any testing prior to completion of the report. The claims folder and a copy of this Remand must be provided to and reviewed by the examiner in conjunction with the examination. The examiner should review the Veteran's August 2004, October 2004, and August 2006 stressor statements prior to the examination, and also ask that the Veteran described his claimed stressors. The examiner must integrate the previous psychiatric findings and diagnoses of current findings to obtain a true picture of the nature of the Veteran's psychiatric status. Following a review of the service and postservice medical records, the examiner must state whether any diagnosed psychiatric disorder is related to the Veteran's active duty service. If the diagnosis of PTSD is deemed appropriate, the examiner must specify (1) whether one or more of the Veteran's reported stressors was sufficient to produce PTSD; and (2) whether it is at least as likely as not (50 percent probability or more) that the Veteran's PTSD is caused by and one or more of the inservice stressors found sufficient to produce PTSD by the examiner. If a diagnosis or diagnoses other than PTSD is deemed appropriate, the examiner must state whether it is at least as likely as not (50 percent probability or more) that any other psychiatric disorder is related to the Veteran's military service. A complete rationale must be provided for any opinion expressed, citing if necessary to specific documents in the claims file or clinical findings made on examination. 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2009). If the Veteran does not report for the aforementioned examination, obtain documentation showing that notice scheduling the examination was sent to the last known address of record, and indicate whether any notice that was sent was returned as undeliverable. 4. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative, and an appropriate period of time in which to respond. Thereafter, return the appeal to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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. 2009). _________________________________________________ ROBERT C. SCHARNBERGER 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).