Citation Nr: 1238167 Decision Date: 11/08/12 Archive Date: 11/16/12 DOCKET NO. 07-00 323A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. At that hearing, the Veteran submitted additional evidence and waived his right to initial review of the evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2011). The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal at this time. The Board points out that the issues of entitlement to service connection for arthritis of the spine, knees, joints, fingers, and knuckles; a neck disability; headaches; meningitis; and Agent Orange exposure were raised by the Veteran. See February 2000 statement from the Veteran. These matters are referred to the originating agency for appropriate action. REMAND The Veteran contends that he has PTSD and depression related to stressors alleged to have occurred during active military service in the Republic of Vietnam. While the record reflects service in Vietnam and a military occupational specialty of cargo handler, the Veteran's service personnel records do not show any awards or decorations denoting he engaged in combat. In a March 2006 statement, the Veteran claimed that he was hit in the elbow by shrapnel and participated in "sweep patrols" during service in February 1970. In February 2010, a U.S. Army and Joint Services Records Research Center (JSRRC) coordinator made a formal finding that there was a lack of information required to corroborate stressor(s) associated with the Veteran's claim of service connection for PTSD. Specifically, the Veteran's claim of participating in sweeps and putting bodies into body bags was unverifiable. In February 2012, the Veteran testified that he unloaded ammunition off of ships and onto barges which caused a lot of stress, because they were told that if a bullet hit the ammunition it could explode. He testified that some days he participated in sweep patrols where people had been ambushed at night and died. The Veteran denied participating in combat, but asserted that he lived in combat-like conditions. He also hauled trailers that contained ammunition. He testified that his unit occasionally drove through towns where grenades were thrown at them. At times, his unit discharged their weapons when people got to close to the unloading site. He assisted in escorting ammunition into the field and feared getting hit while surrounded by explosive material. He also feared dying during night guards after learning about a soldier whose neck was cut. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U. S. Court of Appeals for Veterans Claims (Court) found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability, "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) 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. The provisions of the above amendment apply to applications for service connection for PTSD that (1) are received by VA on or after July 12, 2010; (2) were received by VA before July 12, 2010, but have not been decided by a VA regional office as of July 12, 2010; (3) are appealed to the Board of Veterans' Appeals (Board) on or after July 12, 2010; (4) were appealed to the Board before July 12, 2010, but have not been decided by the Board as of July 12, 2010; or (5) are pending before VA on or after July 12, 2010, because the United States Court of Appeals for Veterans Claims vacated a Board decision on an application and remanded it for readjudication. Thus, the amended regulation applies in this case. The Veteran has not been advised of the new regulation. To avoid prejudice to him, he must be advised of the new regulation, and provided an opportunity to respond, before the claim is readjudicated under that regulation. VA treatment records dated in October 2004 reflect diagnoses of, and treatment for, depression and anxiety. The Veteran was afforded a VA PTSD examination in February 2005 at which time he presented with a history of participating in a sweep after a firefight and recovering two bodies during service. He was diagnosed with dysthymia and anxiety disorder, NOS (not otherwise specified). However, no nexus opinion was provided by the VA examiner. The Veteran was afforded a QTC examination in January 2006 at which time he indicated that during service he was constantly under fire and was afraid that the explosives would blow up. He also contended that he saw people killed and placed bodies into body bags after firefights and other encounters. He was diagnosed with PTSD, chronic, moderate. While the examiner opined that he was exposed to events that caused actual death, threatened death, serious injury, threat to physical integrity of self and others to which he responded with intense fear, helplessness, and horror, the examiner did not specifically opine as to whether the Veteran's PTSD was related to his service. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds the February 2005 VA examination report to be inadequate inasmuch as it does not provide an opinion as to whether the Veteran's dysthymia and anxiety disorder are related to the Veteran's service. The January 2006 QTC examination report is also inadequate inasmuch as it does not provide an opinion as to whether the Veteran has PTSD due to fear of hostile military forces-a stressor that does not require independent verification. See 38 C.F.R. § 3.303(f)(3) (2011). Accordingly, the claim must be remanded. Also, the Board has recharacterized the Veteran's claim as entitlement to service connection for psychiatric disability, to include PTSD and depression. In addition, the Board has determined that the Veteran should be afforded a VA examination to determine the nature and etiology of all acquired psychiatric disorders present during the period of the claim. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development, including providing the Veteran with a letter, explaining the July 2010 amendment of 38 C.F.R. § 3.304(f), and eliciting any additional stressor statements from the Veteran related to such amendment. He should also be provided all notice required in response to the claim for service connection for psychiatric disability other than PTSD. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records pertaining to treatment of the Veteran's psychiatric disorder, to include all pertinent VA records for the period since August 2010 and Vet Center records for the period since January 2005. 3. Then, the Veteran should be afforded an examination by a VA psychiatrist or psychologist to determine whether the Veteran has PTSD due to a stressor of being in fear of hostile action during active service or any other claimed service-related stressor, and to determine the nature and etiology of any other acquired psychiatric disorders that have been present during the pendency of this claim. The claims files and a copy of any pertinent evidence in Virtual VA that is not included in the claims files must be made available to and reviewed by the examiner. Based on the review of the Veteran's pertinent history and the examination of the Veteran, the examiner should identify (1) whether the Veteran has PTSD under the diagnostic criteria of DSM-IV; and, if so, (2) whether such PTSD is due at least in part to fear of hostile action during active service. With respect to each additional acquired psychiatric disorder present during the period of this claim, to specifically include dysthymia, anxiety disorder, and depression, the examiner should express an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated during service, is otherwise etiologically related to service or was caused or permanently worsened by PTSD. The rationale for all opinions expressed must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. 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 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. 2012). _________________________________________________ BETHANY L. BUCK 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) (2012).