Citation Nr: 1120958 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 10-06 873 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for claimed posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to December 1971. Service records show that the Veteran was awarded the Vietnam Service Medal and the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the RO. In October 2010, the Veteran was afforded a hearing held at the RO before the undersigned Veterans Law Judge. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran asserts that he currently has PTSD due to his combat service in the Republic of Vietnam. In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R.§ 3.304(f). On July 13, 2010, VA published a final rule that amended its adjudication regulation governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. The revisions add to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish the occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. 38 C.F.R. § 3.304(f) previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to establish the occurrence of the claimed in-service stressor. VA later amended 38 C.F.R. § 3.304(f) to also authorize VA to accept the statements of Veterans who are former prisoners-of-war, as well as those with an in-service diagnosis of PTSD, as sufficient to establish occurrence of an in-service stressor if such statements are consistent with the places, types, and circumstances of service. The July 2010 amendment of 38 CFR § 3.304(f) eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that a VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and that the Veteran's symptoms are related to the claimed stressor. The amendment has no impact on PTSD claims that arise out of in-service diagnoses of PTSD, or PTSD stressors experienced during combat, internment as a prisoner-of-war, or as the result of personal assault. The provisions of 38 U.S.C.A. § 5103A(d) (West 2002) require that VA provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim. The Board finds that the Veteran should be afforded a VA examination to determine whether he currently has PTSD due to his combat service. At the hearing before the Board in October 2010, the Veteran reported that he was violent and had mood swings, flashbacks, recurrent dreams of his Vietnam experience, recurrent nightmares, and social isolation. The Veteran is competent to report observable symptoms. Duenas v. Principi, 18 Vet. App. 512 (2004). The Board finds that the Veteran should be afforded a VA examination to determine whether he currently has a diagnosis of PTSD in accordance with DSM-IV due to his combat service. At the hearing in October 2010, the Veteran also reported that he sought treatment at the VA medical facilities in Brecksville in the 1970's because he was suicidal and was prescribed Thomasine. He currently received treatment at the VA medical facilities at Brecksville, a subdivision of Wade Park. Of record are VA treatment records dated in the 1970's showing treatment for a low back disability. The RO should attempt to obtain other VA treatment records dated in the 1970's from Brecksville dealing with reported mental health treatment. The RO should make and attempt to the obtain any available VA mental health treatment records from the VA medical facility in Brecksville and Wade Park dated from August 2008 to present. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take all indicated action in order to obtain any outstanding records referable to the Veteran's claimed treatment for a psychiatric disorder to include PTSD from the VA medical facility in Brecksville and Wade Park from the 1970's. In addition, copies of all clinical records dating from August 2008 should be obtained for review. 2. The RO should schedule the Veteran for a VA psychiatric examination to determine the nature and likely etiology of the claimed psychiatric disorder. The claims folder must be made available to and reviewed by the examiner in connection with this examination. All indicated studies, tests and evaluations deemed necessary should be performed. The examiner should report all current diagnoses. A diagnosis of PTSD under DSM IV criteria should be made or definitively ruled out. If PTSD is diagnosed, the examiner must identify any in-service stressor(s) supporting the diagnosis. If PTSD is not diagnosed, the examiner should explain why the diagnosis was not made. For any diagnosis other PTSD, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., at least a 50-50 probability) that the psychiatric disability had its clinical onset during service or was due to an event or incident of the Veteran's period of active service. The examiner should provide a complete rationale for each opinion rendered. 3. Following completion of all indicated development, the RO should readjudicate the claim of service connection in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative with a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).