Citation Nr: 1122207 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 09-49 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from August 1995 to February 1996, from December 1997 to December 2001, and from January 2005 to July 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The record reflects that the Veteran was scheduled for a Travel Board hearing before a Veterans Law Judge in September 2010, but that he failed to report for the hearing. 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 additional development is required prior to adjudicating the Veteran's claim for service connection for PTSD. 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 Veteran claims that memories of stressors associated with his documented service in Iraq during Operation Iraqi Freedom has resulted in PTSD. Specifically, he reports that while he was on guard duty he and another soldier came under mortar attack. He also reports that a friend, T. B., was injured by an IED while on mission to Q-West. In a March 2008 VA treatment record, the Veteran reported that most of his experiences in Iraq involved his fear of dying. Official service department evidence tending to support the nature of the Veteran's service as described by him is represented by the fact that his DD Form 214 reflects that the Veteran served in a designated imminent danger pay area (Iraq) from October 2005 to October 2006. Service treatment records show that on report of medical history dated in April 2006, the Veteran indicated having problems sleeping since his return from overseas. In an April 2007 report of mental status evaluation, he reported being depressed. VA treatment records reflect a negative PTSD screen in December 2007. In 2008, the records include diagnoses of PTSD symptoms, "PTSD (provisional)", and PTSD. However, none of the records listing PTSD addressed the relevant diagnostic criteria, and the diagnosis of "PTSD (provisional)" is the most recent diagnosis in the record. Thus, in light of the recent regulatory change, the Board finds that a VA examination is necessary to determine whether the Veteran suffers from PTSD as a result of his military service in Iraq. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain current mental health treatment records from the Tuskegee VA Medical Center dating since December 2009. 2. Schedule the Veteran for 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 claims file 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 necessary) 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 service in Iraq from October 2005 to October 2006, to include fear of hostile military or terrorist activity. The examiner should set forth all examination findings, together with the complete rationale for any opinions expressed. 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).