Citation Nr: 1303789 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-37 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran had active service from October 1968 to October 1977. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision by the Department of Veterans Affairs (VA) Buffalo, New York Regional Office (RO). The Board has re-characterized the issue on appeal to include MDD, as the record contains diagnoses of PTSD and MDD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, when a claimant makes a claim, he/she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). 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 Over the course of the appeals period, the Veteran has consistently maintained that his PTSD, for which he carries a current diagnosis from VA examiners, is related to one specific stressor: while on leave in Acapulco, Mexico, the Veteran and his friend were eating dinner when a man approached them and put a gun to his face. The Veteran stated that this went on for a few minutes, before the man was escorted away, and that he feared for his life. See Statement, February 2009. Although the Veteran has not been afforded a VA compensation and pension examination in conjunction with his claim, two VA examiners have diagnosed him with PTSD and MDD. While each examiner noted the Veteran's report of the incident described in the preceding paragraph, neither actually linked his psychiatric symptomatology to this incident or any other. Further, neither examiner opined as to whether the Veteran's MDD was etiologically-linked to the Veteran's period of active service. See VA treatment reports, April and September 2009. In support of the Veteran's claim, his representative argued that several in-service "markers" may have been the result of psychiatric symptomatology. These markers included losing consciousness in January 1972, as well as reporting for abdominal pain and malaise on several occasions during service. See VA Form 9, August 2010. The Board notes that the Veteran's stressor requires corroboration, as a combat stressor has neither been alleged nor demonstrated. See 38 C.F.R. § 3.304(f)(2); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Further, the Veteran has never claimed a stressor other than the gun incident while on liberty, which in no way relates to "fear of hostile military or terrorist activity," as provided in regulations amended during the pendency of this appeal. See 38 C.F.R. § 3.304(f). Given that the Veteran is not entitled to a combat presumption, and that the Veteran's stressor does not relate to fear of hostile military, the Board must find credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). To that end, a buddy statement of record, authored by the Veteran's companion during the stressful incident, corroborated the Veteran's report. He noted that they felt helpless during the incident, and that they were not sure what action to take. See Statement, March 2009. As for whether any other type of search is necessary on appeal, the Board finds it highly unlikely that any custodian of records pertaining to the Veteran's period of service would have a record of this purported event. The Veteran has identified no such source of records. As such, no further search is necessary at this time. The Board further notes that VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Taking into account the Veteran's multiple psychiatric diagnoses of record, his claim for service connection must be remanded for a comprehensive VA psychiatric examination so as to determine whether any current psychiatric diagnosis is etiologically-related to his period of active service, to include the incident described in his stressor statement. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims folder. 2. Following completion of the above, the RO/AMC shall schedule a VA mental disorders examination to assess the severity and etiology of any currently-diagnosed psychiatric disorder. The Veteran's claim folder must be made available to the examiner for review in conjunction with the examination. The examiner should review, note, and discuss the Veteran's statements in support of his claim, to include the incident while on liberty in Acapulco, Mexico, as well as prior VA medical evidence of record. In consideration of these and any other evidence or factors deemed relevant, the examiner should address the following question: Whether it is at least as likely as not that any current, acquired psychiatric disorder, to include but not limited to PTSD and MDD, had its onset in service or is otherwise etiologically-related to service. The Veteran's stressor statement should be discussed, as well as his depressive symptomatology. Consideration should also be given to his assertion of "markers" during service which he claims were indicative of psychiatric symptomatology. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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).