Citation Nr: 1126209 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 03-35 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement for psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Associate Counsel INTRODUCTION The Veteran served on active military duty from May 1967 through April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied a claim for service connection for PTSD. The Veteran testified before the RO at a hearing in February 2004. A transcript of that hearing is associated with the claims folder and has been reviewed. In July 2005, the Board denied the claim for service connection for PTSD. The Veteran appealed the July 2005 decision to the United States Court of Appeals for Veterans Claims (Court). A memorandum decision was received in October 2007, which vacated the Board's July 2005 decision. In April 2009 the Board again denied the claim for service connection for PTSD. In February 2011, the Court again remanded the claim back to the Board. The appeal is REMANDED to the Department of Veterans Affairs RO. VA will notify the appellant if further action is required. REMAND There are several records in the file from the Social Security Administration (SSA), including a favorable disability determination, from May 2003. The records are potentially relevant since there is an overlap between the appeal period and the time during which the Veteran's SSA claim was pending. It is not clear that all SSA records are in the file. Some records in the file indicate that the Veteran initially sought treatment for PTSD in the early 1990s. A January 2001 VA psychiatry record showed that the Veteran reported he was in a PTSD program in 1993. In a March 2001 psychology consultation record, it was noted that in 1993 the Veteran was found to have PTSD, sub-clinical type. The Veteran attended PTSD groups for awhile. As VA records currently in the file only date to about 2001, on remand the records from the early 1990s should be requested. The Board finds that a new VA examination is warranted. In Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), the Court held that a claim for service connection for PTSD was not limited to an adjudication of PTSD alone in light of other diagnoses of mental illness in the record. As a result, VA must adjudicate whether any and all diagnosed psychiatric disabilities are related to his service. If the psychiatric disability is not related to service, the examiner must fully explain why not. Such an explanation is not provided in the January 2005 VA examination. On remand, the Veteran should be given a new VA examination, complete with a battery of psychological tests. For each psychiatric diagnosis, the examiner should determine if the diagnosis is related to service and provide full rationale for all conclusions. Effective July 2010, the regulations for adjudicating PTSD changed. VA amended regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010). Id. The final rule amends 38 C.F.R. § 3.304(f) by re-designating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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. For purposes of the above paragraph, "fear of hostile military or terrorist activity" means: that a veteran experienced, witnessed, or was confronted with an event or circumstance. Id. at 39852. The event or circumstance must have involved actual or threatened death or serious injury or a threat to the physical integrity of the veteran or others. Id. Examples of the event or circumstance include: 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. Id. Also, the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The case must be re-adjudicated taking into account the combat presumption under 38 U.S.C.A. § 1154 and the newer fear-based presumption under 38 C.F.R. § 3.304(f)(2) and (3) (2010). Accordingly, the case is REMANDED for the following action: 1. Request from the SSA all records related to the Veteran's claim for Social Security benefits. Associate these records with the claims file. A negative response is requested and should be documented in the file. 2. Request VA treatment records for the Veteran from the early 1990s. Associate these records with the claims file. A negative response is requested and should be documented in the file. 3. After the above development has been completed, schedule the Veteran for a new VA examination that determines the nature, extent, and etiology of any psychiatric disability. The examiner should be notified that the Veteran has combat service; his unit underwent rocket attacks while he served in Vietnam (see November 2004 CURR report). The Veteran's claims file, to include a complete copy of this remand, must be provided to the examiner designated to examine the Veteran, and the report of examination should note a full review of the claims file. All necessary special studies or tests, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD, should be accomplished. The examiner should determine whether the Veteran currently suffers from PTSD related to his combat service or his fear of hostile military or terrorist activity while on active duty and whether it is adequate to support a diagnosis of PTSD. 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. If a psychiatric disability other than PTSD is diagnosed, the examiner should indicate whether it is likely as not (50 percent probability or greater) related to the Veteran's active service. The examination report should include the complete rationale for all opinions expressed. The examiner should provide a rationale for the opinions. 4. Readjudicate the claim for service connection for a psychiatric disability, to include PTSD. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal. An appropriate period of time should be allowed for response. 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 or by 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).