Citation Nr: 1101974 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 09-20 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from August 1998 to August 2003. This appeal to the Board of Veterans' Appeals (Board) is from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. As support for his claim, the Veteran testified at a hearing at the RO in June 2010 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). During the hearing, the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2010). Because, however, his claim requires further development, the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veteran contends he developed PTSD following traumatic experiences during the Persian Gulf War. The Board must remand this claim for further development and consideration, including: (1) obtaining any outstanding service personnel records (SPRs); (2) obtaining any outstanding Social Security Administration (SSA) disability records; and (3) obtaining any outstanding VA treatment records. 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). In determining whether service connection is warranted, due consideration must be given to the places, types, and circumstances of the Veteran's service as well as all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Under 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit has reiterated that competent medical evidence is not required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). He asserts two specific stressors: (1) he had particularly intense and demanding responsibilities as a Marine aircraft maintenance controller, when a Harrier jump jet he was responsible for crashed during desert warfare training; and (2) the Veteran was shipboard when the Captain announced an incoming chemical attack resulting in the Veteran having to work in a chemical gas mask for over six hours. See June 2010 VA treating clinical psychologist's statement and June 2010 personal hearing transcript. Importantly, a VA clinical psychologist relied upon these stressors in diagnosing and treating the Veteran for PTSD. 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)). It is not altogether clear if the claimed stressors are consistent with the places, types, and circumstances of the Veteran's service. Id. In this case, the Veteran asserts he served aboard an aircraft carrier in the Persian Gulf region and El Jabber, Kuwait from January to May 2003, as a Maintenance Control non-commissioned officer over 200 fixed wing mechanics, serving on an aircraft carrier. See June 2009 stressor statement. His DD Form 214 confirms he served on active duty from August 1998 to August 2003, as a fixed wing aircraft mechanic. The Veteran further contends he received an Iraq Campaign Medal. See October 2008 statement. But, this is not shown on his DD Form 214. However, his DD Form 214 denotes 4 months of foreign service. And in a December 2008 memorandum, the RO confirmed that the duty assignment listed on his DD Form 214 of "VMA-211, MAG-13, 3rd MAW, Yuma, AZ" was part of a Harrier squadron, and that this squadron performed combat operations in support of Operations Southern Watch and Iraqi Freedom." So, on remand, the AMC must obtain his SPRs. Unfortunately, it does not appear that the RO has obtained the Veteran's service personnel records (SPRs), aside from his DD Form 214, and associated them with the claims file. Moreover, the AMC should contact any appropriate authorities, such as the NPRC, to confirm if the Veteran received an Iraq Campaign Medal and the extent, if any, of the Veteran's service in the Persian Gulf War. Second, the Veteran testified that he has been receiving disability benefits from the Social Security Administration (SSA), because of his PTSD. See personal hearing transcript, at 12-13. It does not appear the RO has attempted to obtain any of these SSA records, especially those potentially pertinent to the claim at issue in this appeal. When, as here, VA is put on notice of the existence of relevant SSA records, VA must try and obtain these records before deciding the appeal as part of the duty to assist. See 38 C.F.R. § 3.159(c)(2) and (3) (2010); see also Lind v. Principi, 3 Vet. App. 493, 494 (1992); Marciniak v. Brown, 10 Vet. App. 198, 204 (1997). But see, too, Golz v. Shinseki, No. 2009-7039 (Jan. 4, 2010) (indicating there is no such duty to assist when there is no indication the SSA records are potentially relevant to the claims at issue). Third, it appears that the Veteran has recently received VA psychiatric treatment at the West Los Angeles VA Medical Center (VAMC), as revealed by a record dated in June 2010. This signals the existence of additional VA treatment records that need to be obtained before deciding this appeal. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (indicating VA has constructive, if not actual, notice of this additional evidence because it is generated within VA's healthcare system). See also 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(2), (c)(3). Therefore, on remand, the AMC must attempt to obtain these additional SPRs, SSA disability record, and VA treatment records. If they do not exist, the AMC must make an express declaration confirming that further attempts to obtain them would be futile. The Veteran should also be apprised of the latter situation, if it arises. 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's SSA records, including all medical records that formed the basis of any decision rendered by that agency. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1). 2. Obtain the Veteran's outstanding SPRs. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1). Moreover, the AMC should contact any appropriate authorities, such as the NPRC, to confirm if the Veteran received an Iraq Campaign Medal and the extent, if any, of the Veteran's service in the Persian Gulf War. 3. As well, ask that he assist in searching for his VA treatment records by specifying dates, locations, and providers of treatments at VA facilities. After allowing an appropriate time for response, contact the West Los Angeles VAMC, to obtain all of his relevant treatment records, especially any outstanding records not already associated with the claims file. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1). 4. Then readjudicate the claim in light of any additional evidence. If the claim is not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claim. 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). _________________________________________________ KEITH W. ALLEN 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).