Citation Nr: 1121989 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 09-49 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Danielle L. Sgro, Law Clerk INTRODUCTION The Veteran served on active duty from November 1968 to November 1971 and from May 1973 to May 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that denied service connection for PTSD. For the reasons set forth below, this 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 on his part. REMAND Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2010). Pursuant to a liberalizing rule promulgated after the RO issued its rating decision in June 2009, 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 that the veteran's symptoms are related to the claimed stressor, 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 stressor. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)). For purposes of the new regulation, "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-embedded 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. Id. In the present case, the record shows that the Veteran served in Vietnam from June 1969 to June 1970 and from April to November 1971. Veteran asserts that while serving in Vietnam, he witnessed the deaths and serious injuries of numerous fellow soldiers; that his friend, Captain D.D.,was killed in a helicopter crash; and that his base came under enemy attack on several occasions. A November 2008 private treatment record indicates that the Veteran was diagnosed with PTSD related to his service in Vietnam. The diagnosis was made by a private licensed psychological associate and the report was co-signed by a private psychologist. Based on the above findings and pursuant to the liberalizing rule promulgated in July 2010 after the RO issued its rating decision, the Veteran should be afforded a VA medical examination to determine whether he has PTSD resulting from his service. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a new notice letter, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)), pertaining to the issue currently on appeal. The letter must contain, among other things, notice with respect to the evidence and information necessary to substantiate a claim for service connection for PTSD under the amended version of 38 C.F.R. § 3.304(f)(3). The Veteran and his representative must be afforded a reasonable opportunity to respond to the notice, and any additional information or evidence received must be associated with the claims file. 2. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 3. Schedule the Veteran for a VA mental disorders examination, to be conducted by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. After reviewing the claims file, examining the Veteran, and conducting any testing deemed necessary, the examiner should offer an opinion as to whether the stressors the Veteran has described are adequate to support a diagnosis of PTSD and, if so, whether the Veteran's symptoms are related to the claimed stressor(s). A complete rationale should be provided. 4. Thereafter, take adjudicatory action on the claim here in question. In so doing, consider and apply the amended provisions of 38 C.F.R. § 3.304(f)(3). If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative. The SSOC should contain, among other things, a citation to, and summary of, the revised version of 38 C.F.R. § 3.304(f)(3). After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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 Supp. 2010). _________________________________________________ WAYNE M. BRAEUER 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).