Citation Nr: 1304397 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-06 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. A transcript of the July 2011 hearing before the Board has been associated with the record. 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. REMAND The Veteran filed a claim seeking service connection for PTSD. However, the Board finds that the claim contemplates a service connection claim for all currently diagnosed acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim should focus upon the symptoms the claimant is attempting to service-connect however diagnosed). Accordingly, the Board has rephrased the issue on the title page. The primary issue in this case concerns whether the Veteran has a diagnosis of PTSD based on a verified stressor. The Veteran's stressors include being near a fellow soldier when the soldier was accidentally shot, seeing the remains of a Vietnamese civilian after the civilian was killed by a landmine, and having been fired upon while travelling in convoys. The Veteran did not participate in combat, thus his lay statements alone are insufficient to establish the occurrence of the alleged stressors. Cohen v. Brown, 10 Vet. App. 128 (1997). VA attempted to verify the death of the soldier, but was unable to do so. The other alleged stressors cannot be verified because the landmine involved a Vietnamese civilian and because the Veteran did not provide specific details regarding the times and places of the attacks on his convoys. However, if he alleges a stressor related to the fear of hostile military or terrorist activity that is consistent with the places, types, and circumstances of his service, and if 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 his symptoms are related to the claimed stressor, lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3) (2012). While stationed in Vietnam, the Veteran was assigned to the Replacement Detachment 7th Support Battalion 199th Infantry Brigade, the Headquarters and Headquarters Detachment 7th Support Battalion 199th Infantry Brigade, and HQ&A 725th Maintenance Battalion 21st Infantry Division. His military occupation specialty (MOS) was Special Purpose Materiel Supply Specialist, 76Q20. On remand, the RO/AMC should attempt to obtain information regarding the duties of MOS 76Q20, and obtain unit records, journals, or logs to determine the locations of his units and whether any of his units engaged in convoy transport or were subject to enemy fire. If it is found or conceded that the Veteran participated in convoys that were attacked, or that he was otherwise confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, a VA examination should be scheduled with a new VA psychologist or psychiatrist to determine whether the confirmed or conceded stressor is adequate to support a diagnosis of PTSD and to confirm whether or not his symptoms are related to that stressor. 38 C.F.R. § 3.304(f)(3). The examiner should be informed that while the Veteran's psychiatrist, Dr. R.P., did not discuss the DSM-IV criteria in his notes, it is presumed that (unless evidence shows to the contrary) all PTSD diagnoses were in accordance with the applicable DSM-IV criteria. Cohen v. Brown, 10 Vet.App. 128, 140 (Vet.App.,1997). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain named records, the RO is unable to secure same, notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) tell him that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Contact the appropriate agency and attempt to obtain information about the Veteran's MOS duties while stationed in Vietnam, from February 16, 1970 to December 4, 1970, and attempt to obtain copies of the morning and/or daily reports, unit logs, and/or other types of evidence that may corroborate the Veteran's claimed stressors. Records should be obtained from the Replacement Detachment 7th Support Battalion 199th Infantry Brigade, the Headquarters and Headquarters Detachment 7th Support Battalion 199th Infantry Brigade, and HQ&A 725th Maintenance Battalion 21st Infantry Division. Efforts to retrieve this information should be documented in the record. If these records are not available, a negative reply must be provided. Additionally, if these records are unavailable, the Veteran should be notified in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After any outstanding records have been obtained and associated with the claims file, if the RO/AMC confirms or concedes that the Veteran's alleged stressor is consistent with the places, types, and circumstances of his service, schedule a VA examination with a psychiatrist or psychologist other than M.A.B., the examiner that conducted the December 2010 examination. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Notify the examiner of the confirmed or conceded stressor and that while the Veteran's psychiatrist, Dr. R.P., did not discuss the DSM-IV criteria in his treatment notes, it is presumed that (unless evidence shows to the contrary) all PTSD diagnosis are in accordance with the applicable DSM-IV criteria. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on a review of the claims folder, examination findings, and statements of the Veteran, the examiner should render any relevant diagnoses pertaining to the claim for service connection for an acquired psychiatric disorder, including PTSD. For disabilities other than PTSD, opine whether it is at least as likely as not (50 percent or more probability) that the acquired psychiatric disability had onset during, or is otherwise a result of, the Veteran's active service. If PTSD is diagnosed, the examiner should opine whether it is at least as likely as not (50 percent or more probability) that the Veteran's confirmed or conceded stressor is adequate to support a diagnosis of PTSD and whether it is at least as likely as not that the Veteran's symptoms are related to the claimed stressors. The examiner should observe regulation 38 C.F.R. § 3.304(f)(3) as well as any additional guidance provided when rendering the opinion. The regulation provides that if a stressor 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 term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Then, readjudicate the Veteran's claim on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). Allow an appropriate period of time for response. The Veteran 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).