Citation Nr: 1120419 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 06-32 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD) REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from March 1992 to March 1996. 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 Buffalo, New York. In October 2010, the Board remanded the claim for additional evidentiary development. The case has been returned to the Board for further appellate review. The Board notes that the issue of entitlement to service connection for schizoaffective disorder was also originally developed for appellate review and was addressed in the October 2010 Board remand; however, service connection for schizoaffective disorder, bipolar type, was ultimately granted by the RO in a December 2010 rating action. The RO assigned a 100 percent disability rating for this disorder. This issue is no longer in appellate status. Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 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 After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for entitlement to service connection for PTSD. Initially, the Board notes that in its October 2010 remand, the RO was instructed to address the Veteran's claim under the newly revised 38 C.F.R. § 3.304(f) pertaining to PTSD service connection claims, however, it does not appear that the RO considered the updated regulation in the adjudication of the claim. The Court has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304 governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressors. The rule now provides that if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressors, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressors. 75 Fed. Reg. 39843 (2009), to be codified at 38 C.F.R. § 3.304(f)(3). The records show a diagnosis of PTSD during the course of the claim. The Veteran contends that he currently suffers from PTSD as a result of his stressful military experiences while serving in Somalia as part of Operation Restore Hope. The Veteran's service personnel records confirm his service in Somalia from January to February 1993. His military occupational specialty of bulk fuel specialist does not imply combat, and he did not receive any awards or sustain any physical injuries, supporting or suggesting combat. In a stressor statement received in March 2008, the Veteran reported that he was involved in a firefight and mortar attack with Somali insurgents who were attacking the United Nations Headquarters in Mogadishu. He reported that the incident occurred on January 24, 1994, which is not within the time period that he was confirmed to have served in Somalia. On VA examinations conducted in January 2008 and in October 2010, the Veteran reported incidents of being involved in firefights, of seeing dead bodies, and of generally being fearful for his life during the time he served there. The Veteran's personnel records do not suggest that he was involved in combat, and the service department specifically indicated that there was no evidence to support his post-service request for a Combat Action Ribbon. Moreover, the Veteran's recollection of in-service events appears somewhat unreliable. As noted above, he was not in Somalia in January 1994; thus, his claim of participation in a firefight and mortar attack with Somali insurgents who were attacking the United Nations Headquarters in Mogadishu at that time is not credible. Further, on the 2010 VA examination, it was noted that he had mildly disorganized thought processes, mixing of incidents, events and timeframes and had grandiose delusions. It was further noted that he had poor reality testing clouded with delusions. Moreover, the Command Chronology for the 7th Engineer Support Battalion during the Veteran's service in Somalia does not support the Veteran's reported stressors. An internet article addressing events in Somalia note some military confrontations, some US soldiers wounded in action, and a few soldiers killed in action during the Veteran's time in Somalia, but such information does not suggest the Veteran's presence at those events. However, the Veteran has noted being in fear of his life, and there was unrest in Somalia at the time he was there. Thus, the Board finds that a VA examination is necessary in light of the revised regulations governing PTSD. While the Veteran most recently underwent a VA psychiatric examination in October 2010, the diagnosis provided was "PTSD, by history", and the examiner specifically noted that the examination did not seek to assess whether the Veteran met the criteria for PTSD. Thus, the Veteran's PTSD claim must be remanded for another examination and an opinion in accordance with the revised regulations should be sought. Accordingly, the case is REMANDED for the following action: 1. The Veteran should undergo a VA psychiatric examination, performed by a psychiatrist or psychologist, to determine whether he meets the criteria for a diagnosis of PTSD related to his active duty service. The entire claims file, to include a complete copy of this REMAND, must be made available to and be reviewed by the examiner in conjunction with the examination. All appropriate tests and studies (to include psychological testing, if warranted) should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should indicate whether the Veteran suffers from PTSD as a result of his one month service in Somalia from January 3 to February 1, 1993, to include fear of hostile military or terrorist activity. "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, 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." In rendering an opinion, the examiner should assess the reliability of the stressors being reported on examination, in light of the Veteran's prior disorganized thought processes and grandiose delusions, and the lack of corroboration of his participation in combat. The examiner should set forth all examination findings, together with the complete rationale for any opinions expressed, in a printed report. If any requested opinion cannot be provided, the examiner should clearly state the reason(s) why. 2. Thereafter, the RO/AMC should readjudicate the claim on appeal. If the claim is denied, a supplemental statement of the case must be issued, and the appellant offered an opportunity to respond. Thereafter, the claim should be returned to the Board if 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. 2010). _________________________________________________ K. A. BANFIELD 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).