Citation Nr: 1128370 Decision Date: 07/29/11 Archive Date: 08/04/11 DOCKET NO. 04-34 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a lung condition. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the claims. The Veteran provided testimony at a hearing before personnel at the RO in March 2005. A transcript of this hearing has been associated with the Veteran's VA claims folder. This case was previously before the Board in September 2007 and July 2010. In September 2007, the Board remanded the claims for further development to include a VA examination to determine the extent and etiology of the Veteran's lung condition, and verification of his purported stressors. In July 2010, the Board determined that additional development was still required regarding the lung condition claim, and denied the PTSD claim. The Veteran appealed the Board's July 2010 decision to the United States Court of Appeals for Veterans Claims (Court). By a January 2011 Order, the Court, pursuant to a joint motion, vacated the Board's decision to the extent it denied service connection for pts, and remanded the case for compliance with the instructions of the joint motion. The joint motion that the lung condition was not the subject of the appeal to the Court, and that the Board's action as to this claim should be left undisturbed. For the reasons addressed in the REMAND portion of the decision below, further development is required with respect to the PTSD claim in order to comply with the instructions of the joint motion. Accordingly, this claim is REMANDED to the RO. The Board also finds that the development directed by the Board's July 2010 remand has been completed. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the Veteran's lung condition claim have been completed. 2. The Veteran had active service in the Republic of Vietnam, and was presumptively exposed to herbicides therein. 3. The Veteran has not been diagnosed with a lung condition that is presumptively associated with herbicide exposure, and the preponderance of the competent medical and other evidence of record is against a finding that his current disability was incurred in or otherwise the result of his active service. CONCLUSION OF LAW A lung condition was not incurred in or aggravated by the Veteran's active service, to include presumed herbicide exposure therein. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). As noted in the Introduction, the Veteran's PTSD claim is addressed in the REMAND portion of the decision below. Therefore, the adjudication that follows will only address the lung condition claim. The Court has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in December 2003, which is clearly prior to the February 2004 rating decision that is the subject of this appeal. He was also sent additional notification via letters dated in June 2009 and July 2010, followed by readjudication of the appeal by Supplemental Statements of the Case (SSOCs) which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Taken together, the aforementioned VCAA letters informed the Veteran of what was necessary to substantiate his lung condition claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board acknowledges that the notice provided to the Veteran with respect to this claim did not include information regarding disability rating(s) and effective date(s) as mandated by the Court's holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, such information was included as part of a March 2010 SSOC, which indicates that the Veteran was aware of this information. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In any event, the focus of this appeal is whether the Veteran has a current lung condition that is etiologically related to his active service, for which, as detailed above, he received adequate notification. In short, the outcome of this case does not depend upon the information discussed by the Dingess holding. Moreover, for the reasons stated below, the preponderance of the evidence is against the claim, and it must be denied. As such, no disability rating and/or effective date is to be assigned or even considered for this claim. Consequently, the Board concludes that the Veteran has not been prejudiced by this lack of notification regarding the Court's holding in Dingess. See Bernard v. Brown, 4 Vet. App. 384 (1993). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard, supra; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his lung condition claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the March 2005 RO hearing. Nothing indicates he has identified the existence of any other relevant evidence that has not been obtained or requested. Specifically, he has not indicated that there is any outstanding evidence which relates the etiology of his current lung disorder to active service. With respect to the aforementioned March 2005 hearing, the Court recently held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the RO official who conducted the hearing did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's lung condition claim. However, as detailed above the Board has already determined that the Veteran received adequate notification which apprised him of the elements necessary to substantiate this claim. Moreover, the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the claim; i.e., the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his lung condition claim. The RO official did ask questions to clarify whether there were any outstanding medical records. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes that the Veteran was accorded a VA medical examination regarding lung condition claim in February 2010, followed by a July 2010 addendum that included an opinion that addressed the etiology of his lung condition. As this opinions was based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of this VA examination, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). General Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board observes that while the Veteran is capable, as a lay person, to describe visible respiratory symptoms, he is not competent to diagnose a disability of the lungs as it is an internal organ which requires specific medical testing to identify the existence of any such condition. Analysis In the instant case, and for the reasons stated below, the Board finds that the Veteran's claim of service connection for a lung condition must be denied. The Veteran essentially contends that he currently has both a lung condition and arthritis due to in-service herbicide exposure. His service records reflect that he had active service in the Republic of Vietnam. As such, he was presumptively exposed to herbicides therein. See 38 U.S.C.A. § 1116. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to a herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. On August 31, 2010, hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease were added to the list. 75 Fed. Reg. 53202 (2010). However, VA specifically stated that the accepted medical definition of ischemic heart disease does not extend to other conditions, such as hypertension, peripheral artery disease, and stroke, that do not directly affect the muscles of the heart. Id. at 53204. For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In this case, a thorough review of the competent medical evidence of record does not reflect the Veteran has been diagnosed with a lung disability that is presumptively associated with such exposure. For example, the February 2010 VA medical examination diagnosed his condition as restrictive lung disease. It is important to note that the diseases listed at 38 C.F.R. § 3.309(e) are based on findings provided from scientific data furnished by the National Academy of Sciences (NAS). The NAS conducts studies to "summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in Vietnam during the Vietnam era and each disease suspected to be associated with such exposure." 64 Fed. Reg. 59,232-59,243 (Nov. 2, 1999). Reports from NAS are submitted at two-year intervals to reflect the most recent findings. Based on input from the NAS reports, the Congress amends the statutory provisions of the Agent Orange Act found at 38 U.S.C.A. § 1116 and the Secretary promulgates the necessary regulatory changes to reflect the latest additions of diseases shown to be associated with exposure to herbicides. Consequently, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 57586-57589 (1996); Notice 68 Fed. Reg. 27,630-27,641 (2003); 72 Fed. Reg. 32395 (2007); 75 Fed. Reg. 32540 (2010). The Board further notes that the effect herbicide exposure has upon the body, which as noted above includes the development of certain conditions years after exposure, is not the type of determination subject to lay observation pursuant to Jandreau, supra. In other words, it is the type of causal relationship that requires competent medical evidence. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). In view of the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran's current lung condition is due to his presumed herbicide exposure. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran's service treatment records contain no entries indicative of lung problems during his active service. In fact, his lungs and chest were clinically evaluated as normal on his February 1966 separation examination. Chest X-ray conducted in conjunction with this examination found the heart and lungs were within normal limits. Moreover, on a concurrent Report of Medical history, the Veteran indicated he had not experienced tuberculosis, asthma, shortness of breath, pain or pressure in chest, chronic cough, nor any other condition indicative of lung problems. The Board further notes that the first indication of a lung condition in the post-service medical records are years after his separation from service, to include a March 2005 VA treatment record which noted a spot on the Veteran's lungs. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). The Board acknowledges that the Veteran testified at his March 2005 RO hearing that he was informed that a spot was found on his lungs at an employment physical within a year after his separation from active duty. Transcript. p. 6. However, no such medical records are on file, and the Board has already determined that a disability of the lungs is the type of condition which requires competent medical evidence to prove its existence. Moreover, as mentioned above, the record reflects his current lung condition is restrictive air disease, which is not specifically listed as one of the chronic diseases subject to presumptive service connection if diagnosed within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). In addition, no competent medical opinion is of record which relates the etiology of the Veteran's current lung condition to his active service. Rather, the February 2010 VA examiner, in the July 2010 addendum, opined that the Veteran's restrictive lung disease was less likely as not (less than 50/50 probability) caused by or a result of his military service in Vietnam. The examiner supported his opinion by reference to stated rationale, including the fact that the Veteran's post-service employment was more likely than not the source of his respiratory problems. As detailed above, the Board has already determined that this opinion is supported by an adequate foundation, and is adequate for resolution of this case. The Board also notes that, in making this opinion, the examiner took into account the Veteran's contentions, to include his assertion that employers informed him he had a spot on his lungs within a year after his separation from service. For these reasons, the Board has concluded that the preponderance of the evidence is against the Veteran's claim of service connection for a lung condition, to include on the basis of presumed herbicide exposure. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefits sought on appeal with respect to this claim must be denied. ORDER Entitlement to service connection for a lung condition is denied. REMAND In addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror". DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen v. Brown, 10 Vet. App. 128, 141 (1997). In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD. In July 2010, the Board denied the Veteran's PTSD claim finding that he did not engage in combat with the enemy while on active duty, and his claimed in-service stressors were not corroborated by supporting evidence. The joint motion which was the basis for the January 2011 Court Order in this case contended that the Board failed to fully comply with its 2007 remand order in this case. In pertinent part, it was noted that in addressing the Veteran's purported in-service stressors, the U.S. Army and Joint Services Records Research Center (JSRRC) responded solely to the inquiries related to the Veteran's stated "bicycle bomb incident" and his reports of incoming mortar fire at Cam Ranh Bay. However, it was stated that the JSRRC did not refer to the Veteran's other claimed stressor, that of transporting dead or wounded soldiers to Tan Son Nhut in its summarizing of verification efforts, and that such a response was required by the Board's September 2007 remand. The joint motion also contended that the Board failed to comply with the duty to assist because it was required to remand for pertinent records to be requested. In pertinent part, it was stated that the RO did not requires the Veteran's complete service personnel records, only "pages from the personnel file showing unit of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decorations and official travel outside the U.S." The joint motion asserted that the duty to assist compelled the Board to remand for the Veteran's complete service personnel records. In addition, it was contended that the duty to assist compelled the Board to remand for additional efforts to obtain the 510th Engineer Company's morning reports. It was noted that the initial request was for the period from May 1965 to February 1966, and the National Personnel Records Center (NPRC) responded that it could "only search 90 days[.]" but no subsequent response was sent to NPRC with a 90-day period within which to search. In short, the instructions of the joint motion are for the Board to remand the case to conduct further efforts to corroborate the Veteran's purported stressors through official channels, to include an additional request to the JSRRC regarding a purported stressor; requesting the Veteran's complete service personnel records; and an additional request to the NPRC for morning reports which covers a 90-day period. The Board notes that it is well settled that "[w]here a case is addressed by an appellate court, remanded, then returned to the appellate court, the 'law of the case' doctrine operates to preclude reconsideration of identical issues." See Johnson v. Brown, 7 Vet. App. 25, 26 (1994). Moreover, the Court has specifically held that this principle applies to Court decisions on cases remanded to the Board. See Browder v. Brown, 5 Vet. App. 268 (1993). In addition, the Court has held that a corollary principle is the "Mandate Rule": "a lower court is generally bound by the terms of the mandate and has no power or authority to deviate from that mandate." Chisem v. Brown, 8 Vet. App. 374, 375 (1995) (For purposes of this analysis, this Court's position is analogous to that of a 'circuit court,' while the [Board] stands somewhat in the position of a district court.) Accordingly, the case must be remanded to comply with the instructions of the joint motion. The Board further notes that there has been a significant change in the law regarding PTSD claims during the pendency of this case. Specifically, for all claims pending before VA on or after July 13, 2010, the provisions of 38 C.F.R. § 3.304(f) were amended by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010). As the Veteran's claim was appealed to the Board before July 13, 2010, but had not been decided by the Board as of July 13, 2010, the amended regulations apply to the instant claim. The Board observes that the notification provided to the Veteran regarding his PTSD claim does not contain information regarding the revised regulatory provisions of 38 C.F.R. § 3.304(f)(3), nor does it appear that these revised provisions were addressed in the March 2010 Supplemental SSOC on this issue. As such, a remand is also required to correct this deficiency. The Board also reiterates that the notification provided to the Veteran does not appear to contain the information regarding disability rating(s) and effective date(s) as mandated by the Court's holding in Dingess, supra. Although the Board found that this deficiency did not prejudice adjudication of the lung condition claim in this case, as a remand is otherwise required for the PTSD claim the Board finds that such notification should be provided. The Board further finds that any outstanding treatment records regarding the Veteran's claimed PTSD should be obtained while this case is on remand, and that the Veteran should be provided with another opportunity to provide more specific details as to his purported stressors in this case. Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran corrective notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish service connection for PTSD based upon fear of hostile military or terrorist activity pursuant to the revised regulatory provisions of 38 C.F.R. § 3.304(f)(3). In addition, the corrective notice should also include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined by the case of Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should obtain the names and addresses of all medical care providers who have treated the Veteran for psychiatric problems since November 2009. After securing any necessary release, the RO should obtain those records not on file. 3. The RO should also request additional information from the Veteran regarding his purported in-service stressor(s), to include specific dates and places where these events occurred. A reasonable opportunity to respond to this request should be provided. 4. The RO should attempt to secure the Veteran's complete service personnel records through official channels. 5. The RO should make another attempt to verify the Veteran's purported stressors through official channels. In pertinent part, the RO should request verification from the JSRRC regarding the Veteran's purported stressor of transporting dead or wounded soldiers to Tan Son Nhut. The RO should also provide a 90-day for the NPRC to conduct a search for the 510th Engineer Company morning reports. 6. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and etiology of his claimed PTSD. The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed. For any acquired psychiatric disorder found to be present, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any such disability was incurred in or otherwise the result of his active service, to include any verified stressors. If the Veteran is found to satisfy the DSM-IV criteria for a diagnosis of PTSD, the examiner must also express an opinion as to whether it is at least as likely as not that it is due fear of hostile military or terrorist activity as defined by the amended regulatory provisions. A complete rationale for any opinion expressed must be provided and the examination report must be typed. 7. Thereafter, the RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing any additional development deemed necessary, the RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a SSOC, which addresses all of the evidence obtained since the case was last adjudicated by the March 2010 SSOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs