Citation Nr: 1038876 Decision Date: 10/18/10 Archive Date: 10/22/10 DOCKET NO. 08-15 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. He served in the Republic of Vietnam from April 11, 1967 to January 5, 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for posttraumatic stress disorder (PTSD). In April 2007, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in May 2008. His case is currently under the jurisdiction of the VA RO in Los Angeles, California. In June 2010, the Veteran presented sworn testimony during a Travel Board hearing in Los Angeles, California, which was chaired by the undersigned Veterans Law Judge. 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 on his part is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran alleges that he experiences PTSD as a result of his active duty service in Vietnam. He alleged in-service stressors regarding witnessing "atrocities" while in Vietnam. He also reports drinking excessive amounts of alcohol to cope while in- service and receiving an Article 15 related to alcohol use, a copy of which is in the claims file. The Veteran also specified various service members that he claims were killed or injured during his tour of duty, including R. M., C. P., J. P., and V. See Veteran statement, August 2007; BVA hearing transcript, June 2010. None of these specific stressors has been verified. During the pendency of the Veteran's appeal, VA regulations relating to stressor verification and service connection for PTSD changed. Specifically, 38 C.F.R. § 3.304(f)(3) went into effect on July 13, 2010. Under 38 C.F.R. § 3.304(f)(3), if an in- service stressor involves fear of hostile military or terrorist activity, service connection for PTSD may be established if: a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD; the claimed stressor is consistent with the places and circumstances of the Veteran's service; and the Veteran's symptoms are related to the claimed stressor. See 38 C.F.R. § 3.304 (2010). As referenced above, the Veteran's claimed stressors involve fear of hostile military activity. Additionally, the Veteran's VA treatment records show he has been diagnosed with and treated for PTSD at the VA Medical Centers in West Los Angeles and Tampa. At this time, there is no evidence to clearly link PTSD to the claimed stressors and no VA psychiatrist, psychologist, or contract equivalent has confirmed that the claimed stressors are adequate to support the PTSD diagnosis. Accordingly, under the new regulation, 38 C.F.R. § 3.304(f)(3), the Board finds that a VA examination is necessary to decide the claim. As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to service connection for PTSD must be remanded for a new VA psychiatric examination. Additionally, the claims file includes an October 2007 VA Form 21-4142, Authorization and Consent to Release Information, for Drs. R. C. and S. L. S. Although the release has been signed, it is not completed, missing contact information for the healthcare providers. There is no indication that the RO attempted to obtain contact information for these physicians or any treatment records. Therefore, on remand, the Veteran should be afforded another opportunity to complete a VA Form 21-4142 and the RO should attempt to obtain any outstanding private treatment records. As the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file, including any treatment records from the Miami VAMC dated approximately 2001 to 2004, as identified by the Veteran at his Board hearing. See BVA hearing transcript, June 2010. Accordingly, the case is REMANDED for the following actions: 1. Copies of all outstanding VA treatment records from the West Los Angeles VA Medical Center, Miami VA Medical Center, and any other VA facility identified by the Veteran, should be obtained and added to the claims folder. 2. Contact the Veteran to obtain a completed and signed release of information for any treatment records held by Dr. R. C., Dr. S. L. S., or any other facilities or providers identified by the Veteran. If the Veteran returns a completed and signed release of information, the AMC should attempt to obtain these records and associate them with the claims file. If the AMC is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2010). 3. The Veteran must be scheduled for a VA examination with an appropriate examiner (VA psychiatrist or psychologist or contract equivalent) to determine the nature and etiology of his PTSD or other acquired psychiatric disorder present. The examiner must review pertinent documents, including the Veteran's diagnoses of PTSD and the supporting psychometric testing results, in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner must state whether it is at least as likely as not that the Veteran's current PTSD was caused or aggravated (permanently increased in severity beyond the natural progress of the disorder) by his active duty service. Specifically, the examiner should state whether or not the Veteran's claimed stressors are related to his fear of hostile military or terrorist activity. The examiner should then determine whether this is adequate to support a diagnosis of PTSD. The examiner should also determine whether it is at least as likely as not that the Veteran has any other acquired psychiatric disorder that is of service onset or otherwise related thereo. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. After completing the above actions and any other notification or development deemed necessary, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2010). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2009). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2010).