Citation Nr: 1307186 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-37 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant (Veteran) represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In his original claim in May 2008, the Veteran asserted service connection for PTSD. The Board has recharacterized his claim more generally, as one of service connection for a psychiatric disorder to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Board notes that it has reviewed the Veteran's claims file, to include documents of record that have been included in his virtual VA folder. No relevant evidence has been added to the claims file by the RO since the supplemental statement of the case (SSOC) dated in February 2012. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). 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. In the February 2013 Informal Hearing Presentation of record, the Veteran's representative indicates that the Veteran seeks service connection for a heart disorder. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over the issue. As such, the issue of service connection for a heart disorder is referred to the AOJ for appropriate action. REMAND The evidence of record indicates that the Veteran served in the Republic of Vietnam between December 1967 and January 1969. The Veteran claims that he incurred PTSD while serving there. In his original claim, he described serving as a "perimeter guard" and assisting "incoming medivac flights with wounded/KIA[.]" He also claims to now experience alcohol abuse, anxiety, irritability, avoidance, intrusive thoughts, occasional homicidal feelings, and short-term memory loss. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection for PTSD, there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA has amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). The amendments, which took effect July 13, 2010, redesignated current paragraphs (f)(3) and (f)(4) of 38 C.F.R. § 3.304(f) as paragraphs (f)(4) and (f)(5), respectively, and added a new paragraph (f)(3) that reads as follows: 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. 38 C.F.R. § 3.304(f)(3). The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist. In this case, the Veteran contends that he developed PTSD as a result of traumatic activity while serving in Vietnam. However, he has not provided a detailed stressor statement that would enable VA to adequately assess his claim. Moreover, although he was provided with a VA compensation examination scheduled in February 2012, the record indicates that he canceled the examination. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he or she suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this matter, the Board finds that a remand is warranted for additional development and medical inquiry, despite the fact that the Veteran did not appear for the scheduled examination in February 2012. In this regard, the Board notes, and has considered favorably, the representative's February 2013 request for a new VA examination. Further, the Board finds that the Veteran should be given an additional opportunity to describe the activities in Vietnam which he believes led to his psychiatric troubles. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In light of the Veteran's cancellation of the February 2012 examination, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following actions: 1. Request from the Veteran a written stressor statement in which he details the circumstances of service in Vietnam which he believes led to the development of a psychiatric disorder. 2. Obtain and associate with the claims file any VA treatment records dated after May 2009. 3. After completing the above development to the extent possible, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder diagnosed, to include both PTSD and non-PTSD disabilities. The claims file must be reviewed in conjunction with the examination and the examiner's report should note that review. All testing deemed necessary, if any, must be conducted and results reported in detail. The VA examiner's opinion should: a) Diagnose all current psychiatric disabilities and provide a full multi-axial diagnosis pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM-IV). b) Specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to DSM-IV. c) If a diagnosis of PTSD is warranted, indicate the specific claimed in-service stressor or stressors upon which that diagnosis is based and state whether each stressor is related to an asserted fear of hostile military or terrorist activity. 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 examiner is advised that the Veteran's personnel records confirm service in Vietnam. d) Discuss whether it is at least as likely as not (50 percent or more probability) that any other currently diagnosed psychiatric disorder, including PTSD, was caused or aggravated by the Veteran's reported in-service stressors or any other aspect of his military service. Please provide the reasons behind all opinions expressed. 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. In preparing the requested opinions, all pertinent evidence of record should be considered. 4. The claim on appeal should then be readjudicated. If any aspect of the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ 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).