Citation Nr: 1114765 Decision Date: 04/15/11 Archive Date: 04/21/11 DOCKET NO. 07-14 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from April 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas. In pertinent part of the February 2006 decision, the RO denied service connection for PTSD. The Veteran testified before the undersigned Veterans Law Judge in March 2011. At the hearing the Veteran submitted additional medical evidence with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. 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 Board finds that a VA examination is warranted prior to adjudication of this matter. Throughout the pendency of the appeal the Veteran has asserted that there were three stressor events during service that now cause his PTSD. First, he stated that he witnessed a civilian get run over by a train when he was stationed in Korea. Second, he indicated that he saw a 3/4 ton truck filled with blood and bullet holes at Kimpo Airport. Third, he relayed an account of when his Sergeant called him back from boarding a helicopter, and the helicopter crashed killing all on board. Attempts were made to verify the Veteran's reported inservice stressor events. In May 2010, the Joint Services Records Research Center (JSRRC) made a formal finding that there was a lack of information required to corroborate the stressors associated with the Veteran's claim. The Board notes that the evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was recently relaxed, adding to the types of claims VA will accept through credible lay testimony alone. The new regulations provide that 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. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. pt. 3). Therefore, under the new regulation, the Veteran could still potentially be entitled to service connection for PTSD even though the Veteran's reported in-service stressor events have not been verified. Though the new regulations state that the Veteran's stressors may not need to be verified, for service connection to be awarded, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. It is unclear whether or not the Veteran has a diagnosis of PTSD as a result of his military service. While the Veteran has a diagnosis of PTSD there is no evidence that this condition was related to the Veteran's military service and reported stressors. An August 2006 VA treatment note and a December 2005 VA treatment note both diagnosed the Veteran with the following: adjustment disorder with mixed anxiety; depressed mood; and non-combat related PTSD symptoms. Since the Veteran has not been afforded a VA examination, the Board finds that the Veteran should be scheduled for a VA examination to determine the nature and likely etiology of his PTSD. The VA examiner should opine if the Veteran has a diagnosis of PTSD that is at least likely as not related to a stressful event that took place during his military service. In so doing, the examiner should be asked to confirm 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 addition, it was stated in a September 2006 VA treatment note that the Veteran was denied benefits by the Social Security Administration (SSA). While the VA treatment note states that the Veteran was denied SSA benefits, it is unclear what condition he applied for and whether he is currently in receipt of SSA. The file contains no information indicating that the RO has obtained any records from the SSA. Where there is actual notice to VA that the appellant is receiving disability benefits from SSA, VA has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon. Murincsac v. Derwinski, 2 Vet. App. 363 (1992). The RO should obtain all records that pertain to a SSA decision. Prior to any VA examination, attempts should be made to obtain any outstanding records of pertinent medical treatment. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. Based on the Veteran's response, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. The RO should obtain all relevant private and VA treatment records. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 2. The RO must request from the Social Security Administration copies of all records pertinent to the Veteran's application of Social Security disability benefits, including the administrative decision and the medical records relied upon concerning that claim. 3. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of PTSD. The entire claims file must be made available to the examiner for review. The examiner should discuss the Veteran's documented medical history and any assertions regarding whether the Veteran's PTSD is due to service. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should identify any current psychiatric diagnosis, including PTSD. For any diagnosed psychiatric disability, the examiner should provide a medical opinion as to whether it is at least as likely as not that such disability is due to or aggravated by service. In so doing, the examiner should be asked to confirm 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 rendering his/her opinion, the VA examiner should discuss all opinions of record. A full and complete rationale for all opinions expressed is required. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue on appeal should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims. 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).