Citation Nr: 1124566 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 09-32 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from July 1970 to February 1972. He served in the Republic of Vietnam from January 11, 1971 to December 20, 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. By that rating action, the RO denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran appealed the RO's October 2007 rating action to the Board. The appeal is REMANDED to the RO/Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that additional substantive development, as outlined in the indented paragraphs below, is necessary prior to further appellate consideration of the claim on appeal. The Veteran contends that he has PTSD that is the result of his combat service in the RVN. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Medical Disorders (4th ed. 1994) (DSM-IV), (2) credible supporting evidence that the claimed in- service stressors actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in- service stressor(s). See 38 C.F.R. §§3.304(f), 4.125(a). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). These revised regulations 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. 41092 (July 15, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)). The revised regulations pertaining to PTSD no longer require the verification of an in-service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity." Such a location can be evidenced by awards such as the Iraq Campaign Medal or the Vietnam Service Medal. Lay testimony alone can be used to establish the occurrence of an in- service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f) (2010) (as amended by 75 Fed. Reg. 39843, 39852 (July 13, 2010) & 75 Fed. Reg. 41092 (July 15, 2010)). Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states: 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 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. For purposes of this paragraph, "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. Previously, VA was required to undertake extensive development to determine whether a non-combat Veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor; instead, credible supporting evidence of a corroborated in- service stressor was required. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The Veteran's alleged stressors consist of being subject to mortar and small arms fire while stationed with the Property Disposal Office (PDO) Company at Phu Tai, Vietnam. Specifically, he contends that around July 1971, the PDO complex was overrun by enemy forces and that he was left behind in the arms room overnight. He maintains that ever since that incident, he cannot remain in an enclosed environment. He further contends that when he initially arrived in the RVN in January 1971, his convoy from Qui Nhon to Phu Tai was ambushed and that two military policemen were killed. (See VA Form titled "Information In Support of Claim for Post Traumatic Stress Disorder, received by the RO in August 2007). In addition, the Veteran asserts that in 1971, he witnessed a soldier, whose last name was "Stanley," get shot in the chest in a guard tower. (See VA Form 21-4138, Statement In Support Of Claim dated and signed by the Veteran in March 2007). The Veteran's DD Form 214 and service personnel records indicate that he was awarded the Army Commendation Medal, National Defense Service Medal (NDSM), the Vietnam Service Medal (VSM), and the Vietnam Campaign Medal (VCM) with Device; there is no indication of receipt of such combat-related citations as the Purple Heart Medal or the Combat Infantryman Badge. These records also show that he served in the RVN January 11, 1971 to December 20, 1971, and that he was assigned to PDO Company as a supply clerk. The Board finds the Veteran's claimed stressors to be consistent with the places, types, and circumstances of the Veteran's service. See 38 C.F.R. § 3.304(f) (2010) (as amended by 75 Fed. Reg. 39843, 39852 (July 13, 2010) & 75 Fed. Reg. 41092 (July 15, 2010)). A VA treating psychiatrist has made the required diagnosis of PTSD. (See June 2006 VA treatment record). In Cohen v. Brown, 10 Vet. App. 128 (1997), the United States Court of Appeals for Veteran Claims (Court) noted that a diagnosis of PTSD is presumably in accordance with the DSM-IV criteria, both in terms of the adequacy and sufficiency of the stressors claimed. In making this diagnosis, the VA psychiatrist recorded the Veteran's general complaints of being involved in "extensive combat." He indicated that the Veteran was a "Vietnam combat Veteran." Id. This same VA psychiatrist diagnosed the Veteran with PTSD in September 2006, but without any specific stressor allegations noted. (See September 2006 VA treatment record). There is, however, no indication that the Veteran reported the above-cited stressors to the VA psychiatrist in June and September 2006 as the basis for his diagnosis of PTSD. Thus, it does not appear that this VA psychiatrist necessarily relied upon these stressors in diagnosing and treating the Veteran for PTSD, but instead, perhaps upon general allegations of Vietnam War trauma. Id; see also 38 C.F.R. § 3.304(f) (2010) (as amended by 75 Fed. Reg. 39843, 39852 (July 13, 2010) & 75 Fed. Reg. 41092 (July 15, 2010)). Thus, the Board finds that a VA compensation examination and opinion are needed to determine whether the stressors mentioned are adequate to support this PTSD diagnosis and its relationship to the claimed stressors. 38 C.F.R. § 3.304(f) (2010) (as amended by 75 Fed. Reg. 39843, 39852 (July 13, 2010) & 75 Fed. Reg. 41092 (July 15, 2010)). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The RO/AMC shall schedule the Veteran for a VA compensation examination by a VA psychiatrist or psychologist, or contract equivalent, to determine the etiology of any currently diagnosed psychiatric PTSD. The claims folder should be reviewed by the examiner and that review should be indicated in the examination report. All appropriate tests and studies should be conducted. The examiner should address the following: (a) The examiner shall specifically comment on whether the Veteran has a diagnosis of PTSD consistent with the criteria for a diagnosis under the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); (b) If the diagnostic criteria to support a diagnosis of PTSD have been satisfied and a diagnosis of PTSD is deemed appropriate, the examiner shall comment upon any link between the current symptomatology and one (or more) of the in-service stressors reported by the Veteran. The examiner must specifically state whether the claimed stressor, if not involving combat, is related to the Veteran's fear of hostile military or terrorist activity of the type contemplated by the recent revisions to 38 C.F.R. § 3.304(f)(3). The rationale for all opinions expressed should be provided in a legible report. If the examiner is unable to render an opinion without resort to mere speculation, it should be indicated and explained why an opinion cannot be reached. 2. The RO/AMC must readjudicate the claim for service connection for PTSD in light of any additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) that addresses all the evidence received since the June 2009 Statement of the Case. The Veteran and his representative should be provided an opportunity to respond to the SSOC before returning the file to the Board for further appellate consideration of the claim. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL A. PAPPAS 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).