Citation Nr: 1117841 Decision Date: 05/10/11 Archive Date: 05/17/11 DOCKET NO. 08-12 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a Board hearing at the RO in Phoenix, Arizona in November 2010. This transcript has been associated with the file. The Board notes in February 2008, during the course of the appeal, the Veteran filed a claim for PTSD based on an assault sustained in California. However, this was considered in the Veteran's original March 2007 rating decision denial. As much as the Veteran is now pursuing this as a new avenue of entitlement, the Court of Appeals for Veteran Claims (Court) recognized that a claim based on a new theory of entitlement is not a new claim, but constitutes an application to reopen the previously denied claim. Ashford v. Brown, 10 Vet. App. 120 (1997). 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 The Veteran has claimed that he suffers from PTSD as a result of various incidents which happened while he was stationed in-service. See e.g., November 2010 hearing transcript. His military occupational specialty was a cook. He did not receive any decorations indicative of combat service. He is, however, in receipt of the Vietnam Service Medal which signifies that he served in a location that would be exposed to hostile military activity. In a February 2006 statement, the Veteran reported that the first night he arrived in Vietnam there was a rocket attack and 10 men were killed. He also stated that on another occasion he went to pick up Vietnamese workers, who worked at the officers club/field mess, but he was fired upon when he arrived and 3 female workers had been killed at the pick-up spot. At his November 2010 hearing, the Veteran indicated while driving his rations truck in Vietnam he was followed by men on motorcycles and someone jumped on the back and attempted to open the truck to steal food. He testified that he shot at the men and hit one. He also testified that he engaged in gunfire on another occasion when he was working in a ration area. Id. He further testified to an assault which took place in Long Beach, California which required hospitalization. See also October 2008 statement of Veteran's sister. Although the Veteran was not diagnosed as having PTSD at a VA examination in May 2010, numerous VA treatment records reflect otherwise. A record as early as August 2006 noted a diagnosis of PTSD and noted he was attending the PTSD support group at the VA Medical Center (VAMC). A February 2009 VA treatment record diagnosed the Veteran with PTSD and indicated that he was still attending the PTSD support group at the VAMC. A February 2010 VA treatment record indicated the Veteran was regularly attending a PTSD support group. The Board also notes that the regulations regarding service connection for PTSD were recently amended to provide that 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. 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). For purposes of this section, "fear of hostile military or terrorist activity" means that the 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, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304(f)(3) (2010). The RO should apply this new regulation to the instant claim. The Veteran should be afforded a new VA examination so that the examiner can give an opinion as to whether the Veteran suffers from PTSD due to a claimed stressor, if any, or due to fear of hostile military or terrorist activity. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine if the Veteran suffers from PTSD due to a claimed stressor, if any, or due to fear of hostile military or terrorist activity. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. Any necessary testing should be accomplished. The examiner should utilize the DSM-IV in arriving at any diagnoses and should explain whether and how each of the diagnostic criteria is or is not satisfied. After reviewing the record and examining the Veteran, in addition to the other information provided in the examination report, the examiner should specifically state whether or not the Veteran has PTSD and whether the claimed stressor is related to the Veteran's fear of hostile military or terrorist activity. 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 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. Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 2. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim, taking into account all evidence provided since the June 2010 supplemental statement of the case (SSOC). If the benefits sought on appeal are not granted, the Veteran should be furnished with a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The RO should, in the SSOC, cite to and apply the latest version of 38 C.F.R. § 3.304(f) (amended effective July 13, 2010). 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). 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. 2010). _________________________________________________ K. PARAKKAL 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) (2010).