Citation Nr: 1113812 Decision Date: 04/07/11 Archive Date: 04/15/11 DOCKET NO. 01-07 573A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from May 1968 to May 1972. This included time in Vietnam with the Air Force. A review of the claims file reveals that in June 2004 the case was previously before the Board of Veterans' Appeals (Board). It was determined that the Veteran had submitted new and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for PTSD. Following a reopening of the claim, the case was remanded for both procedural and substantive purposes. The case was then returned to the Board and in August 2008, service connection for PTSD was denied. The Veteran then appealed the determination to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum decision dated in July 2010, the Court vacated the August 2008 Board decision and remanded the matter for readjudication consistent with the decision. In view of the Memorandum decision, the case is remanded to the RO for appropriate consideration. VA will notify the Veteran should further action be required. REMAND Initially, the Board notes that in the case of Clemons v. Peake, 23 Vet. App. 1 (2009), the Court held that a claim for service connection may include any disability that may reasonably be encompassed by several factors, including a claim and subscription of the claim, symptoms the claimant describes, information he submits or the Secretary of VA obtains as part of the claims. Clemons, 23 Vet. App. at 5. In the instant case, a review of the record shows that the Veteran was seen in service for psychiatric treatment and evaluation and the post service record reveals diagnoses of psychiatric disorders other than PTSD. The record reflects that by decision review officer decision dated in March 2010, service connection for anxiety disorder, not otherwise specified, was granted. A 50 percent rating was assigned, effective January 20, 2009. The issue of service connection for PTSD remains for adjudication. The post service medical evidence includes varying psychiatric diagnoses, including PTSD, dysthymia, generalized anxiety disorder, and polysubstance abuse. As indicated by the Court in its Memorandum decision, the U.S. Army & Joint Services Records Research Center confirmed that the base at which the Veteran was stationed while in Vietnam was attacked 10 separate times between August 1969 and March 1970. The Court indicated that report corroborates the Veteran's claim of rocket attacks as an inservice stressor. The medical evidence includes the report of a VA examination of the Veteran in February 2008. However, 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, confirmed 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 claim as to the claimed stressor. Given the foregoing, as well as the instructions in the Court's Memorandum decision, the Board finds the Veteran should be afforded a VA psychiatric examination to determine whether he indeed has PTSD attributable to his experiences in Vietnam. Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, the case is REMANDED for the following: 1. The Veteran should be accorded an examination by a physician knowledgeable in psychiatry for the purposes of determining whether or not he has PTSD attributable to his combat experiences in Vietnam. Prior to the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the psychiatrist or examiner. The examiner should also elicit from the Veteran a detailed history regarding the onset of ongoing symptoms. All indicated tests and studies, to include psychological testing, if necessary, are to be performed and the examiner should review the results of any testing prior to completing the report. The examiner should identify all objective indications of psychiatric disability. A diagnosis of PTSD should be confirmed or ruled out. If PTSD is diagnosed, the elements supporting a diagnosis should be identified. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. The examiner should specifically state whether it is more likely than not (that is, to a degree of probability greater than 50 percent), at least as likely as not (that is, a probability of 50 percent) or unlikely (that is, a probability of less than 50 percent) that the PTSD is a result of one or more of the any identified inservice stressors. If the Veteran does not meet the criteria for a diagnosis of PTSD, the examiner should explain why. 2. The RO should notify the Veteran that it is his responsibility to report for the examination and to cooperate fully in the development of his claim. He is to be told that the consequences of failure to report for any VA examination may result in a denial of his claim. 38 C.F.R. § 3.655 (2010). 3. After the above has been completed, VA must readjudicate the claim for service connection for PTSD. If the benefit sought on appeal is not allowed, the Veteran should be provided a supplemental statement of the case. He and his representative should then be given an appropriate time frame within which to respond. Then, the case should be returned to the Board for appellate review, if otherwise noted. By this REMAND, the Board intimates no opinion, either or factual, as to any final outcome warranted. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ V. L. JORDAN 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).