Citation Nr: 1141237 Decision Date: 11/07/11 Archive Date: 11/21/11 DOCKET NO. 08-20 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from September 1969 to September 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran originally filed his claim at the New Orleans, Louisiana RO. Due to Hurricane Katrina, however, his claims file was sent to the St. Louis RO for adjudication. As of July 2006, the Veteran's claims file was again located at the New Orleans RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to attempt to obtain verification of alleged stressors, provide the Veteran with adequate notice, and provide the Veteran with a psychiatric examination. Preliminarily, the Board notes that the issue on appeal has been recharacterized to include non-posttraumatic stress disorder (PTSD) psychiatric disorders. Although the Veteran filed a claim for entitlement to service connection for PTSD a claim for service connection for a psychiatric disability encompasses all psychiatric symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). This is because a claimant generally is not competent to diagnose his specific mental condition; he is only competent to identify and explain the symptoms that he observes and experiences. Clemons, 23 Vet. App. at 4-5. VA medical records contain diagnoses of PTSD, and major depressive disorder. Accordingly, the Board finds that the issue is more properly characterized as a claim for a psychiatric disorder, to include PTSD. First, remand is required to provide notice to the Veteran. Under the Veterans Claims Assistance Act of 2000, VA has a duty to notify claimants of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). New regulations have been issued regarding PTSD. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)), corrected by 75 Fed. Reg. 41,092 (July 15, 2010) ("Stressor Determinations"). These amendments are applicable to the Veteran's appeal. See Stressor Determinations, 75 Fed. Reg. 39,843 (stating that the amendments are applicable to appeals currently before the Board that have not yet been decided). The Veteran has not yet received notice of these regulatory amendments. The Veteran has also not received VCAA notice regarding the non-PTSD portion of his claim for service connection. Accordingly, such notice must be provided. Second, remand is required to make an additional attempt at verifying the Veteran's alleged in-service stressors. In September 2007, the RO requested verification of the following: (1) mortar attacks on Company D of the 69th Engineer Battalion in the Delta Region of Vietnam; (2) April 1970 casualties named J, H, R, W, G, L, M, and M; (3) an explosion which blew apart and killed the Veteran's squad leader; and (4) a September 1970 truck incident in which the Veteran's friend JJ died. In October 2007, the Center for Unit Records and Research (now the Joint Services Records Research Center or JSRRC) responded that it could not verify any of the listed casualties. The JSRRC noted that the Veteran's company was located at Binh Thuy for his entire period of service in Vietnam. The JSRRC noted that Operations Report - Lessons Learned from November 1969 to October 1970 indicated that there were injuries to soldiers in Companies A and B due to vehicle mine strikes, an enemy grenade, a friendly grenade, and few sniper attacks. An Enemy Activity Report for April 1969 through March 1970 indicated that there was a mortar attack on Binh Thuy with no casualties, that 2 individuals died in vehicle crashes in May and June 1970, and that in July 1970, Binh Thuy was attacked by fire. First, the JSRRC did not provide a date for the verified mortar attack on Binh Thuy. Second, the RO did not provide the name of the squad leader, which the Veteran provided in lay statements of record (JG). Third, the Veteran's service personnel records indicate he was with the Headquarters Company until March 1970. It is not clear if this unit, rather than Company D, was also searched. Fourth, the RO did not follow up to determine if the 2 deaths due to vehicle crashes were the Veteran's friend, JJ. Accordingly, additional development must be completed on remand. Third, remand is required to provide the Veteran with a medical examination. VA must provide the Veteran with a medical examination where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2011). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2011). There are several avenues to document an in-service stressor, other than obtaining verification from the JSRRC or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to Veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f) (2011); Stressor Determinations, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). Lay evidence may establish an alleged stressor may where: 1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, 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; 3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and 4) there is no clear and convincing evidence to the contrary. See Stressor Determinations, 75 Fed. Reg. 39,843, 39,852. Fear of hostile military or terrorist activity occurs where 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. See Stressor Determinations, 75 Fed. Reg. 39,843, 39,852. Here, the Veteran alleges several stressors: (1) being fired on by a fellow service-member; (2) being in a convoy to Bien Hoa when an explosion killed his squad leader JG, possibly in June 1970; (3) loading body bags; (4) experiencing mortar attacks on his unit, possibly in April 1970; (5) being in a convoy to Long Bien and a truck accident killed his friend LG, possibly in September 1970; and (6) several fellow service-members were killed in action, including GJ, LH, MR, and MW. The Veteran's service personnel records indicate he served in Vietnam from February 15, 1970 to December 31, 1970 as an engineer equipment repairman. He served with the 69th Engineer Battalion. He was with Headquarters Company prior to March 1970, but was stationed with Company D thereafter. He received the Republic of Vietnam Campaign Medal with 60 device and the Vietnam Service Medal. VA medical records dated beginning in 2005 provide diagnoses of PTSD and major depressive disorder. Accordingly, there is evidence of a PTSD diagnosis, lay evidence of in-service stressors that may involve fear of hostile military or terrorist activity, possibly verifiable in-service stressors, and the Veteran's assertion that his psychiatric difficulties are due to these stressors. An examination is thus needed to determine if there is a PTSD diagnosis in conformance with the DSM-IV and to obtain medical opinions regarding the relationship of any diagnosed psychiatric disorder to his alleged in-service stressors. The Board notes it is not conceding that the Veteran's alleged stressors are consistent with the places, types, and circumstances of the Veteran's service, nor that there is no clear and convincing evidence to the contrary. See Stressor Determinations, 75 Fed. Reg. 39,843, 39,852. Regarding the non-PTSD portion of the claim for service connection, an examination is also required. Here, VA medical records have provided diagnoses of major depression. The Veteran has provided lay testimony regarding in-service stressors. Additionally, in a June 2008 lay statement, the Veteran's wife reported that she married the Veteran prior to his Vietnam service and that he changed drastically upon his return from service. The Veteran has also provided lay testimony in a June 2008 statement that he has lived with psychiatric difficulties for over 30 years, ever since his return from Vietnam. Other family members provided statements regarding the Veteran's changed behavior after service discharge. An examination is thus required because there is competent evidence of diagnosed disability, lay evidence of in-service events, and lay evidence of continuity of symptoms that provides an indication that the disability may be associated with the in-service complaints. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. Accordingly, remand is required for an examination. Accordingly, the case is REMANDED for the following action: 1. Provide the following notice to the Veteran: general VCAA notice regarding his claim for service connection for a non-PTSD psychiatric disability, and notice of the new PTSD regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). 2. After the Veteran has been provided with a reasonable time to respond to the notice letter, and regardless of whether he provides any additional information, the AMC must contact the appropriate records repository and attempt verification of the following: (1) the incident wherein the Veteran's squad leader was killed; (2) any mortar attacks at Headquarters Company in February 1970 and March 1970; and (3) the dates of the mortar attacks at Binh Thuy. The AMC must document for the claims file which repository or repositories were contacted and why. 3. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 4. Regardless of whether any stressor is verified and following the completion of all of the above directives, provide the Veteran with a VA psychiatric examination to determine the nature and etiology of all diagnosed psychiatric disorders. Because this examination will be partially conducted under the amended PTSD regulations, it must be conducted by a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be performed. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. A complete rationale for any opinion expressed must be included in the examination report. If an opinion cannot be provided without resort to speculation, the examiner must provide supporting rationale for that statement. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. First, the examiner must express an opinion as to whether the Veteran meets the DSM-IV criteria for PTSD. If the examiner finds that the Veteran does not meet the criteria, he or she must expressly address the multiple diagnoses contained in VA medical records. The examiner must then determine whether there are any other non-PTSD psychiatric diagnoses. If the examiner finds that the there are no other psychiatric diagnoses, he or she must expressly address the multiple diagnoses of major depressive disorder contained in VA medical records. Second, if the Veteran meets the DSM-IV criteria for PTSD and if any stressor has been verified by JSRRC, the examiner must provide an opinion whether it is at least as likely as not (a 50 percent or greater likelihood) that the PTSD was caused by the alleged stressor. Third, if the Veteran meets the DSM-IV criteria for PTSD, then the examiner must provide the following opinions regarding each of the Veteran's claimed stressors, regardless of whether the stressors are verified: whether the claimed stressors are adequate to support a diagnosis of PTSD; whether the stressors are based on a fear of hostile military or terrorist activity during service; and whether the symptoms are related to the claimed stressors. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressors. Regarding the claim for a non-PTSD psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's depression and any other currently diagnosed psychiatric disability is related to active service. The examiner must also address the Veteran's lay statements that he has experienced psychiatric symptoms since his return from Vietnam. The examiner must also address the Veteran's wife's and his other family member's statements regarding his changed behavior after service discharge. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). _________________________________________________ J.A. MARKEY 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).