Citation Nr: 1109690 Decision Date: 03/11/11 Archive Date: 03/24/11 DOCKET NO. 09-03 383A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depression. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Robben, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in pertinent part, denied entitlement to service connection for PTSD. The Veteran provided testimony before the undersigned at the RO in January 2011. The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for PTSD as encompassing entitlement to service connection for an acquired psychiatric disability, to include PTSD and major depression, regardless of the precise diagnosis. 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 testified during the January 2011 Board hearing that he received treatment at the VA Medical Center (VAMC) in Albany, New York. The last treatment records from the VAMC are dated in August 2007. VA has a duty to obtain these records. 38 U.S.C.A. § 5103A(b),(c) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran reported in an April 2008 statement that he had received Social Security Disability benefits for two to three years but had been unable to go to be reassessed due to anxiety and depression. The United States Court of Appeals for Veterans Claims (Court) has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). As the SSA's disability determination and any related medical records have not yet been associated with the claims file, a remand is necessary to obtain these records. Cf. Golz v. Shinseki, No. 2009-7039 (Fed. Cir. Jan. 4, 2010) (VA is required only to obtain SSA records when they may be relevant to the claim). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service include credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran asserts that he incurred PTSD as a result of active duty service. As noted above, VAMC treatment records demonstrated multiple psychiatric diagnoses, including PTSD and major depression, and under Clemons the Board must consider entitlement to service connection for a psychiatric disorder, regardless of the actual diagnosis. Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating 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 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. 75 Fed. Reg. 39843 (July 13, 2010). In the April 2008 statement, the Veteran reported that he experienced incoming rocket attacks and that he feared for his life as a result of the possibility of being attacked. Therefore, VA's duty to provide a VA examination is triggered under the new regulation. Moreover, the Veteran has reported that his psychiatric symptoms began in service and shortly after discharge. As there is evidence of multiple diagnoses, the VA examiner should clarify whether any other diagnosed disability currently exists and is etiologically related to service. Accordingly, the case is REMANDED for the following action: 1. Request records of the Veteran's mental health treatment at the Albany VAMC from August 2007. All attempts to procure such records should be documented in accordance with 38 C.F.R. § 3.159. 2. Obtain from SSA the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. Schedule the Veteran for a VA psychiatric examination. The examiner should review the claims folder and note such review in the examination report or in an addendum. The examiner should provide an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD. If not, the examiner should specify which of the criteria are not met. If the Veteran does meet the PTSD criteria, the examiner should specify the stressor(s) supporting the diagnosis and provide a detailed description of the stressor(s). If, however, the diagnosis of PTSD is based upon a stressor involving fear of hostile military or terrorist activity, the examiner should so state. The examiner should also provide an opinion as to whether any other currently diagnosed psychiatric disability, including major depression, at least as likely as not (i.e., not an absolute certainty but a 50 percent or greater probability) had its onset in service or is the result of a disease or injury in service. The examiner should provide a rationale for each of the opinions that takes into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, the examiner should provide a reason for doing so. 4. The agency of original jurisdiction should review the examination report to ensure that it contains the opinion and rationale requested in this remand. 5. If the benefit sought on appeal remain denied, issue a supplemental statement of the case addressing the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depression, before the claims file is returned to the Board, if otherwise in order. The appellant 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 2002 & Supp. 2010). _________________________________________________ Mark D. Hindin 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).