Citation Nr: 1119310 Decision Date: 05/19/11 Archive Date: 05/27/11 DOCKET NO. 07-30 477 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1972 to July 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Houston, Texas VARO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran's claim seeks service connection for PTSD, and that is the specific claim adjudicated by the RO and developed for appellate review. However, in an interim precedent decision (Clemons v. Shinseki, 23 Vet. App. 1 (2009)), the U.S. Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record, i.e., that matter(s) of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of a service connection for a psychiatric disability claim (and that such matter(s) is/are before the Board). Notably, the Veteran's treating and examining VA mental health personnel have also assigned him diagnoses of anxiety, depression, and a history of alcohol dependence in remission. He has also received diagnoses of organic brain syndrome due to trauma, dementia secondary to head injury, and cognitive disorder due to head injury, all related to a July 1981 (postservice) head injury. The rating decision on appeal addressed only PTSD. As the RO has not developed or adjudicated the matter of service connection for psychiatric other than PTSD, this must be done on remand for compliance with Clemons. The issue is characterized accordingly. 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). VA treatment records include assessments of PTSD based on the Veteran's accounts of combat stressor events that have not been corroborated. His service personnel records (SPRs) reflect that he participated in Operation Eagle Pull (the evacuation of Phnom Penh, Cambodia) in April 1975 and Operation Frequent Wind (the evacuation of Saigon) in April to May 1975. His primary MOS in service was Rifleman, and the SPRs indicate he served as a rifleman, a squad leader, and a rifle squad leader. The service records suggest that his service 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 stressors alone and the symptoms presented are sufficient to support a diagnosis of PTSD. Hence, further development of the medical evidence in this matter is necessary. A review of the claims file also found that the Social Security Administration (SSA) awarded the Veteran disability benefits as of January 1982. The decision awarding the benefits and any records underlying the decision are not associated with the claims file, but are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following action: 1. Regarding the matter of service connection for psychiatric disability other than PTSD, the RO should send the Veteran a letter providing him all VCAA-mandated notice, and afford him and his representative the opportunity to respond. The RO should arrange for any further development in the matter suggested by his response. 2. The RO should obtain from SSA a copy of their decision awarding the Veteran disability benefits and all medical records considered in connection with the award. If the records are unavailable, it should be so certified for the record (with explanation why that is so). 3. The RO should then arrange for the Veteran to be examined by an appropriate VA psychologist or psychiatrist to determine the nature and likely etiology of his 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 examiner must be advised examiner of the verified stressors, to include the Veteran's did participate in Operations Eagle Pull Frequent Wind in 1975, with the potential to have been subject to hostile activity (as he claimed). Based on examination of the Veteran and 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 while participating in Operation Eagle Pull and/or Operation Frequent Wind? Please discuss sufficiency of stressor and the symptoms that support any such diagnosis. (c) 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 should then readjudicate the matter on appeal, to encompass all psychiatric diagnoses shown in accordance with Clemons and the revisions in 38 C.F.R. § 3.304(f) that came into effect July 13, 2010. If the claim remains denied, the RO 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). _________________________________________________ George R. Senyk 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).