Citation Nr: 1135591 Decision Date: 09/22/11 Archive Date: 10/03/11 DOCKET NO. 09-07 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to December 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in June 2008, a statement of the case was issued in January 2009, and a substantive appeal was received in February 2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran claims service connection for PTSD. His service treatment records are silent for reference to PTSD and medical records and statements from the Veteran dated prior to February 2002 do not mention psychiatric problems. Service stressors alleged by the Veteran have not been confirmed to date. Anxiety disorder and PTSD are reported in June 2007 VA medical records. During the Veteran's hearing, his spouse indicated that he had had psychiatric symptomatology during the 32 years of their marriage, and that it seemed to have become worse after he retired in March 2007. During the pendency of the appeal, 38 C.F.R. § 3.304(f) pertaining to PTSD was amended as follows: (f)(3) If a stressor or claim by a Veteran is related to the Veteran's fear of hostile military or terroristic activity and the 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 terroristic 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 improvised explosive device; a 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 psychophysiological state of fear, helplessness, or horror. The Veteran in this case receives consideration under the amended version of 38 C.F.R. § 3.304(f) because his claim was appealed to the Board prior to July 13, 2010, the date VA amended the regulation, but not decided by the Board as of July 13, 2010. VA has a duty to assist Veterans in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination. The Veteran has indicated that he was exposed to mortar attacks and enemy fire in and around Chu Lai, Vietnam during service, and that he feared for his life while in Vietnam. He also has indicated that he saw dead Viet Cong and young Americans screaming with pain from their injuries, and saw one young man die right in front of him after the Veteran had injected him with morphine. He has not been accorded a comprehensive psychiatric examination by VA for the purpose of obtaining an opinion from the psychiatrist or psychologist as to whether his claimed stressor or stressors are adequate to support a diagnosis of PTSD, and as to whether his symptoms are related to the claimed stressors, and this is necessary. Next, the Veteran has claimed TDIU. Currently, he is service connected for lumbar spine degenerative disc disease, 60 percent; coronary artery disease, 60 percent; diabetes mellitus, 20 percent; right hand disability, 20 percent; duodenal bulb deformity, 20 percent; right wrist degenerative arthritis, 10 percent; lumbosacral spine surgical scar, noncompensable; and erectile dysfunction, noncompensable. His combined rating is 90 percent. Based on the Veteran's February 2009 statement, it appears that he feels that he is unemployable at least in part due to his service connected lumbar spine degenerative disc disease and diabetes mellitus, and the PTSD for which he seeks service connection. This issue is inextricably intertwined with the service connection claim regarding to PTSD. In view of the foregoing, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. VA should contact the Veteran and request that he identify any and all VA and non-VA sources of treatment for his psychiatric symptomatology, and for any service connected disabilities. In particular, the Veteran should provide, or authorize VA to obtain, any such pertinent records. All efforts to obtain these records should be fully documented. If any records are not able to be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. The Veteran should also be afforded another opportunity to submit additional information and evidence relevant to his claim for service connection for PTSD. He should again be asked to provide as much information as possible regarding his claimed stressors, particularly dates, full names of people involved, and places. The Veteran should also be informed that it is to his benefit to provide as specific information as possible. 3. Thereafter, the Veteran should be accorded an examination by a physician knowledgeable in psychiatry for the purpose of determining whether or not he has PTSD or any other chronic acquired psychiatric disorder attributable to his active military service. Prior to the examination, the claims folder must be made available to and reviewed by the examiner. A notation to the effect that this record review takes place should be included in the report by the psychiatrist or other examiner. The examiner should elicit from the Veteran a detailed history regarding the onset of ongoing symptoms. All indicated tests and studies, to include psychological testing, are to be performed. The examiner should identify all objective indications of psychiatric disability. A diagnosis of PTSD should be confirmed or ruled out. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current symptoms are related to a confirmed stressor or a stressor involving fear of hostile military activity. The Veteran has reported stressors involving fear of hostile military or terroristic activity, and, therefore, the examiner should opine as to whether such reported stressors are adequate to support a diagnosis of PTSD. In the alternative, the examiner is asked to express an opinion as to whether there is any other psychiatric disorder present that is at least as likely as not related to the Veteran's active service. The complete rationale for any opinion expressed should be provided. If the examiner cannot provide a diagnosis without resort to speculation, this should be so stated, and the examiner should indicate why. 4. Schedule the Veteran for an appropriate VA general medical examination. The claims folder must be reviewed by the examiner. The examiner should discuss the degree of occupational impairment attributable to the Veteran's service-connected disabilities only (postoperative degenerative disc disease of the lumbosacral spine with fusion, rod fixation, sciatic and sensory neuropathy of the toes, and motor neuropathy of the lower extremities; coronary artery disease status post angioplasty; diabetes mellitus type II; residuals of right hand injury with osteopenia and osteoarthritis; duodenal bulb deformity; degenerative arthritis of his right wrist; surgical scar in the low lumbosacral area; and erectile dysfunction). In particular, he or she should describe what types of employment activities would or would not be limited because of the Veteran's service connected disabilities and whether any limitation on employment is likely to be permanent. Also, he or she should render an opinion as to what types of employment activities would or would not be limited based on the severity of his service connected disabilities. 5. VA should notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate fully in the development of his claim. He is to be told that the consequences of failing to report for any VA examination may result in an adverse determination. 38 C.F.R. § 3.655 (2010). 6. Thereafter, VA shall review the claims file and ensure that the foregoing development actions have been conducted and completed in full or to the extent possible. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case. They should then be given a reasonable time frame in which to respond. Then, the case should be returned to the Board for further appellate review, 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). _________________________________________________ ROBERT E. O'BRIEN Acting 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).