Citation Nr: 1307214 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-31 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a hearing before the undersigned Veterans Law Judge by video conference from the Philadelphia RO in September 2012. A transcript of that hearing is associated with the claims file. The appeal was initially developed and adjudicated by the RO as involving only a claim for service connection for PTSD. However, pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that although the claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental 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 VA obtains in support of the claim), the issue has been framed as noted on the title page of this decision. 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 After reviewing the Veteran's claims file, the Board concludes that additional development is necessary in order to comply with VA's duty to assist. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Although the Veteran did not report for a VA examination scheduled in June 2012 with regard to his acquired psychiatric disorder, the Veteran has provided good cause to reschedule the examination. See 38 C.F.R. § 3.655(a) (2012). A June 2012 report of general information indicates that the Veteran called to report that he was unable to attend the examination because he was out of town, and requested that another examination be scheduled. The Veteran reiterated his desire to report for a VA examination during his September 2012 hearing before the Board, and stated that he was willing and able to report for a VA examination. Accordingly, the Veteran should be rescheduled for a VA examination addressing the etiology of all of his diagnosed acquired psychiatric disorders, to include PTSD. With regard to the VA examination, the Board observes that, during the pendency of the Veteran's appeal, the criteria for verifying in-service stressors were amended, effective July 13, 2010. The amendment states that, 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) (2012) . While the VA treatment records in the claims file reflect diagnoses of and treatment for PTSD, they do not clearly indicate the stressors upon which the diagnoses are based. However, the Veteran has reported stressors describing events which 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. Specifically, during a September 2012 hearing before the Board, the Veteran reported stressors including working as a radioman in Chu Lai, Vietnam where there was shooting back and forth nearby; being in the general vicinity where there was incoming fire from small arms, rockets, and mortars; and being in the general area where there was constant incoming fire and threats of incoming fire and at least one attempt to overrun his position. Applying the revised regulation, these stressors reported by the Veteran relate to fear of hostile military activity and are consistent with the places, types, and circumstances of the Veteran's service, and therefore are to be considered verified. However, the medical evidence of record is insufficient to determine whether the Veteran's stressors are sufficient to have caused PTSD and whether they in fact did cause the Veteran's PTSD, if any. Therefore, an examination is required so that a VA examiner can provide an opinion as to whether the Veteran has PTSD that is related to his verified stressors, and whether or not the Veteran has any other psychiatric disability that is related to service. Accordingly, the case is REMANDED for the following action: 1. Reschedule the Veteran for a VA psychiatric examination to determine whether there is a valid diagnosis of PTSD and to ascertain the nature and etiology of any psychiatric disorder found. The Veteran's claims file and a copy of this Remand must be provided to the VA examiner for review prior to the examination. All necessary studies or tests, to include psychological testing and evaluation, must be accomplished. Thereafter, based upon review of the evidence of record, to include the lay statements and testimony of record, the examiner must provide an opinion as to whether the Veteran has PTSD. The Veteran's verified stressors are working as a radioman in Chu Lai, Vietnam, where there was shooting back and forth nearby, being in the general area where there was incoming fire from small arms, rockets, and mortars, and being in the general area where there was constant incoming fire and threats of incoming fire and at least one attempt to overrun his position as described at his September 2012 hearing. If PTSD is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the verified stressors are sufficient to have caused PTSD and did cause the Veteran's PTSD. If a diagnosis of PTSD cannot be made, the examiner must specifically explain this position in light of the numerous findings of PTSD of record. If any psychiatric disability other than PTSD is diagnosed, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any other psychiatric disability is related to active military service. All opinions provided must include a complete rationale and explanation of the basis for the opinion. 2. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655(a) (2012). 3. After completing the above and conducting any other development that may be indicated, the RO must readjudicate the Veteran's claim with consideration of 3.304(f). If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, to include consideration of the revised regulation concerning PTSD. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must 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 action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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).