Citation Nr: 1117247 Decision Date: 05/04/11 Archive Date: 05/10/11 DOCKET NO. 04-26 064 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1971 to February 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Little Rock, Arkansas RO, in which the appellant's request to reopen a previously denied claim of service connection for PTSD was denied. In July 2005, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. This issue was previously before the Board in January 2006, at which time the Board reopened the service connection claim based on new and material evidence received, and remanded for additional development. The issue was again before the Board in April 2009, at which time it was again remanded for additional development. 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 on his part. REMAND Unfortunately, since the April 2009 Board remand, circumstances have subsequently occurred that require further development. On July 13, 2010, VA amended its regulations concerning service connection for PTSD by liberalizing the evidentiary standard for an in-service stressor under certain circumstances. Prior to July 13, 2010, VA regulations generally provided that the non-combat veteran's lay testimony alone would not be enough to establish the occurrence of the stressor. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). In such cases, VA required corroborating evidence in the form of service records or other credible statements. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (holding that the veteran's actual presence during the stressor event did not have to be corroborated, as evidence that the veteran was assigned to and stationed with a unit that was present while the reported event occurred strongly suggests actual exposure to the stressor event). Under the new rule, now codified as 38 C.F.R. § 3.304(f)(3), service connection may be granted for PTSD where the evidence establishes: (1) a current diagnosis of PTSD rendered by a VA psychiatrist or psychologist, or one with whom VA has contracted; (2) an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically linked to the veteran's fear of hostile military or terrorist activity by such a specified medical professional; and (3) that the veteran's PTSD symptoms have been medically linked to such in-service stressor by such a specified medical professional. The regulation defines "fear of hostile military or terrorist activity" to mean 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. 38 C.F.R. § 3.304(f)(3). These amended provisions apply to service connection claims for PTSD that are received by VA on or after July 13, 2010; were received by VA before July 13, 2010, but have not been decided by a VA regional office as of July 13, 2010; are appealed to the Board on or after July 13, 2010; were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010; or are pending before VA on or after July 13, 2010, because the United States Court of Appeals for Veterans Claims vacated a Board decision on an application and remanded it for readjudication. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010) (changing the applicability date from July 12, 2010 to July 13, 2010). In the instant case, numerous VA treatment records have produced a diagnosis of PTSD based on the Veteran's report of serving in a combat area and a specific uncorroborated personal assault stressor event. Service records establish that the Veteran's service in Vietnam with a security battalion and on helicopters likely exposed him to circumstances consistent with an allegation of fear of hostile activity. It is unclear from the medical evidence of record whether such alleged stressor alone and the symptoms presented are sufficient to support a diagnosis of PTSD. As such, further development of the medical evidence in this matter is necessary. Furthermore, in the intervening period, precedent decision of Clemons v. Shinseki, 23 Vet. App. 1 (2009) the U.S. Court of Appeals for Veterans Claims (Court) held, in essence, that the scope of a service connection for PTSD claim included consideration of service connection for other psychiatric diagnoses shown by the record. Notably, the Veteran has been assessed by VA and private examiners as having recurrent unipolar moderate major depression, moderate to severe panic disorder with agoraphobia, and mixed substance dependence in remission. As the RO has not developed or adjudicated the matter of service connection for psychiatric disability to include the diagnosed disorders other than PTSD, this must be done on remand for compliance with Clemons. The issue on the title page of this decision has been changed to reflect this precedential opinion. The Board otherwise notes that VA outpatient treatment records of January 2009 show that the Veteran had been receiving counseling at a Vet Center. Those treatment reports must be obtained and associated with the claims files. Accordingly, the case is REMANDED for the following action: 1. Regarding the matter of service connection for psychiatric disability other than PTSD, the RO/AMC should send the Veteran a letter providing him all VCAA-mandated notice, and afford him and his representative the opportunity to respond. The RO/AMC should arrange for any further development in the matter suggested by his response. 2. Obtain the outstanding treatment reports from the Veteran's sessions at the Vet Center. 3. Arrange for a VA examination by an appropriate psychiatric examiner to determine the nature and likely etiology of the Veteran's psychiatric disability/disabilities. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Regarding stressor events in service, the RO/AMC should advise the examiner of the verified stressors, to include, as appropriate - the Veteran did serve on guard duty and on helicopters in Vietnam, with the potential to have been subject to mortar or rocket attacks on the ground and/or small arms fire on the helicopters (as he has previously claimed). Based on examination of the Veteran and complete review of the record, the examiner should provide an opinion responding to the following: (a) Please identify (by medical diagnosis) each of the Veteran's psychiatric disabilities. (b) Specifically, does the Veteran have PTSD based on the stressor of a fear of hostile activity? Please discuss sufficiency of stressor and the symptoms that support any such diagnosis. (c) The healthcare professional should review the evidence in the claims file and provide an opinion on whether any in-service contemporaneous behavior changes indicate that a personal/sexual assault had been committed. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. The report should be associated with the Veteran's claims folder. (d) As to each and every psychiatric diagnosis other than PTSD, please indicate whether such disability is at least as likely as not (a 50% or better probability) related to the Veteran's military service/documented events therein. The examiner must explain the rationale for all opinions offered. 4. The RO/AMC should then readjudicate the matter on appeal, to encompass all psychiatric diagnoses shown in accordance with Clemons, and to encompass the revisions in the 38 C.F.R. § 3.304(f) that came into effect July 13, 2010. If the claim remains denied, the RO/AMC should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board. 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 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). _________________________________________________ M. SABULSKY 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).