Citation Nr: 1121969 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 09-41 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 1958 to May 1963 and from March 1964 to March 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which in pertinent part denied service connection for PTSD. 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 Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). The Veteran claims to have suffered from PTSD continuously since service. VA has recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the Veteran must have experienced, witnessed, or have been confronted by 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, and the Veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the Veteran's service. Id. These revised regulations became effective July 13, 2010, and apply in cases like the Veteran's which were appealed to the Board prior to July 13, 2010, but not decided by the Board as of that date. 75 Fed. Reg. 41,092 (July 15, 2010) (to be codified at 38 C.F.R. § 3.304(f)). In this case, a VA psychiatric examination has not been conducted. The Veteran contends that he served in Vietnam from July 1966 to July 1967 and that he was stationed at Cam Ranh Bay, with the 109th Quartermaster, with an MOS of Heavy Truck Driver. He contends that he has PTSD which stems from witnessing many horrific events of the war, to include death and serious injury to fellow comrades and others. He also claims that while he was in Vietnam, his base came under incoming enemy attack. See October 2008 stressor statement. Service personnel records show that the Veteran actually served in Vietnam from August 1965 to August 1966, and that he was assigned to the 383rd Quartermaster Detachment while in Vietnam with an MOS of Supply Clerk and Heavy Vehicle Driver. His DD-214's show that he received a National Defense Service Medal, Vietnam Campaign Medal and Vietnam Service Medal. During a September 2008 private psychiatric evaluation, the Veteran reported that in December 1965, he enlisted in the Army and was sent to Vietnam and stationed at Saigon and Bien Hoa, where he came under enemy fire on many occasions and witnessed the death and serious injury of numerous fellow soldiers and others. The examiner opined that because of his military experiences, the Veteran experiences symptoms that meet the criteria for a diagnosis of PTSD as reported in the DSM-IVR. See October 2008 psychological evaluation report from LG, LPA. As noted above, the recently revised provisions of 38 C.F.R. § 3.304(f) require that a VA psychiatrist or psychologist confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that a Veteran's symptoms are related to the claimed stressor. In light of the Veteran's contentions regarding a continuity of symptomology and the recent regulation revision, a VA psychiatric examination is necessary to determine whether the Veteran has PTSD or other psychiatric disability related to service, including his fear of hostile military action. In addition, one of the Veteran's claimed stressors (namely, witnessing the death and serious injury of fellow comrades, which is indicative of the fear of hostile military activity in Vietnam) appears to be consistent with the places, types and circumstances of his service as a heavy truck driver in Vietnam from August 1965 to August 1966. No further stressor development is required in this case if a VA examiner confirms that the stressors are adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to that claimed stressor. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to be given an examination to determine the etiology of all current psychiatric disorders. The examiner should review the claims folder and acknowledge such review in the examination report or in an addendum. The examiner should provide an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD. If PTSD is not diagnosed, the examiner should specify the criteria that are not met. If the Veteran meets the criteria for a diagnosis of PTSD, the examiner should specify the stressors that support the diagnosis. With respect to any other acquired psychiatric disorders found to be present, the examiner should provide an opinion as to whether it is as likely as not (50 percent probability or more ) that the disorder originated while the Veteran was serving on active duty or is otherwise the result of a disease or injury in service, including traumatic events. The examiner is advised that the Veteran is competent to report in-service injuries and symptoms and that his report of history must be considered. The examination report should include discussion of the Veteran's documented medical history and assertions. A complete rationale should be given for all opinions and conclusions expressed. 2. If any benefit sought on appeal remains denied, a supplemental statement of the case should be issued before the case is returned to the Board, if otherwise 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). _________________________________________________ Mark D. Hindin 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).