Citation Nr: 1123056 Decision Date: 06/16/11 Archive Date: 06/28/11 DOCKET NO. 05-12 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1977. This matter comes to the Board of Veterans' Appeals (Board) from a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for PTSD. A notice of disagreement was filed in March 2004, a statement of the case was issued in February 2005, and a substantive appeal was received in April 2005. The Veteran testified at a Board hearing in March 2011; the transcript is of record. In February 2011, the Veteran filed a claim of service connection for bilateral hearing loss and tinnitus. This is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND An October 2000 VA treatment record reflects that the Veteran had sought mental health treatment at the Phoenix VA Medical Center (VAMC) since 1984. At the Board hearing, the Veteran testified that he sought mental health treatment at the Denver, Colorado VAMC or the Phoenix VAMC in 1980 or thereafter. The evidence of record contains VA inpatient and outpatient treatment records from March 25, 1996; however, there are no records on file prior to this period. The Veteran's treatment records for the period January 1, 1980, to March 24, 1996, from the Denver and Phoenix VAMC's, should be associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611 (1992). While on remand, updated treatment records should be obtained from the Phoenix VAMC for the period January 19, 2011 to the present. See id. With regard to the Veteran's claim of service connection for PTSD, the Board notes that new regulations have been implemented with regard to stressor determinations for PTSD. Per the new regulations, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and the Veteran's PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. See 38 C.F.R. § 3.304(f)(3) (2010); 75 Fed. Reg. 39843 - 39852 (July 13, 2010). 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. See 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39843 - 39852 (July 13, 2010). Since the Veteran was not stationed in an area where hostile military or terrorist activity would normally take place, it is not clear that the regulatory change would relate to him. The Veteran has submitted statements and has testified that he served as a combat engineer building bridges and retrieving World War II mines during his service in Germany. The Veteran testified that retrieving the land mines could be nerve-wracking. The Veteran testified that his unit was called out on "alerts" and he would be in the "field" for weeks at a time in Germany and along the Czechoslovakian border. He has stated that he began to drink heavily and use drugs during his period of active service. He witnessed soldiers being injured in accidents and witnessed a soldier attempting suicide. The RO/AMC should notify the Veteran of the regulation changes and ensure that the Veteran's claim of service connection for PTSD is readjudicated under the amendments. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Apeals for Veterans Claims (Court) held that a claim of service connection for PTSD was not limited to an adjudication of PTSD alone in light of other diagnoses of mental illness in the record. The Court noted that a layperson is not competent to diagnose a psychiatric disorder; therefore, any and all mental disorders eventually diagnosed during the course of a claim should be considered, even though the Veteran did not file a written claim for that disorder. The facts of the instant case are similar to those in Clemons. In this matter, the RO has denied entitlement to service connection for PTSD on the basis that claimed stressors have not been corroborated. The medical evidence, however, reflects diagnoses of dysthymia, bipolar affective disorder, and major depression. In light of the Court's holding in Clemons, the Board finds that the Veteran should be scheduled for a VA examination to determine the nature and etiology of all of his psychiatric symptomatology, including dysthymia, bipolar affective disorder, and major depression. The RO should also ensure that the Veteran receives proper notice pursuant to the VCAA with regard to entitlement to service connection for an acquired psychiatric disability, other than PTSD. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107; 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Accordingly, the case is REMANDED for the following actions: 1. Request treatment records from the Denver VAMC and Phoenix VAMC for the period January 1, 1980, to March 24, 1996, and obtain updated treatment records from the Phoenix VAMC for the period January 19, 2011. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Schedule the Veteran for a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. a) The examiner should determine whether the Veteran currently suffers from PTSD related to his fear of hostile military or terrorist activity while on active duty, and whether it is adequate to support a diagnosis of PTSD. 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. b) For any other psychiatric diagnosis, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed psychiatric disorder is a result of service or any incident therein. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinion with the service treatment records, service personnel records, and post-service diagnoses. 3. After completion of the above, review the expanded record and readjudicate entitlement to service connection for PTSD, to include under the provisions of 38 C.F.R. § 3.304(f)(3) (2010) and 75 Fed. Reg. 39843 - 39852 (July 13, 2010), and adjudicate entitlement to service connection for an acquired psychiatric disability. If any of the benefits sought are not granted in full, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have the right to submit additional evidence and argument on the 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ THOMAS J. DANNAHER 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).