Citation Nr: 1315425 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-39 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active military service from August 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. Although the Veteran has specifically sought service connection only for PTSD, the Board is mindful of the U.S. Court of Appeals for Veterans Claims decision in Clemons v. Shinseki, 23 Vet. App 1 (2009), in which the Court held that an appellant's diagnoses which arise from the same symptoms for which he is seeking benefits do not relate to entirely separate claims not yet filed by the appellant. Rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim he did submit. In this regard, as the Veteran has been diagnosed as having PTSD as well as depressive disorder, the Board has recharacterized the issue on appeal to include any and all psychiatric disability. 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 seeks entitlement to service connection for an acquired psychiatric disorder. Specifically, he asserts that he developed PTSD as a result of unloading the bodies and remains of U.S. servicemen killed in Vietnam in his capacity as a Freight Traffic Specialist at Travis Air Force Base in Fairfield, California, from August 1968 to January 1969. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy" or was a prisoner of war (POW) as established by official records, including recognized military combat citations or other supportive evidence. Here, however, where the Veteran did not engage in combat with the enemy and was not a POW, the Veteran's lay testimony by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128 (1997). The Veteran has current diagnoses of PTSD and depressive disorder. However, review of his service treatment records reveals no evidence of, complaints of, treatment for, or diagnosis of a psychiatric disorder. It is unclear when the Veteran asserts that his psychiatric symptomatology first manifested, but a December 2007 VA treatment note indicated that the Veteran had been experiencing nightmares about his in-service stressors "for years." The Veteran's service personnel records do confirm that he served as a Freight Traffic Specialist whose duties included receiving and inspecting incoming freight. These records also confirm that he was stationed at Travis Air Force Base in California from August 1968 until his separation from service in January 1969. Additionally, the Veteran submitted lay correspondence dated in August 2009 from a civilian employee who had worked with him at Travis Air Force Base and who stated that they were responsible for loading and unloading the remains of military personnel killed in the Vietnam Conflict. In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Board acknowledges that the RO made a formal finding in May 2008 that the information provided by the Veteran with regard to his alleged stressors was insufficient to allow for a meaningful search of the records at the U.S. Army and Joint Services Records Research Center (JSRRC). However, the Board finds that unloading the bodies of deceased U.S. servicemen killed in Vietnam is consistent with the places, types, and circumstances of the Veteran's service as a Freight Traffic Specialist stationed at Travis Air Force Base from August 1968 to January 1969. To date, the Veteran has not been afforded a VA examination with respect to his claim. The Board emphasizes that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4)(i). In the present case, the Veteran has been diagnosed as having PTSD as well as depressive disorder. As the Veteran's claimed stressors are consistent with the places, types, and circumstances of his service, the Board finds that he should be afforded a VA examination to determine the nature and probable etiology of his diagnosed psychiatric disorders. The RO initially limited its analysis of the Veteran's claim, only considering the provisions of 38 C.F.R. § 3.304(f) and the Court's holding in Cohen (relating only to specific claims for PTSD) rather than expanding its analysis to encompass direct service connection for all diagnosed psychiatric disorders as per 38 C.F.R. § 3.303. Under the laws and regulations pertaining to direct service connection, the aforementioned elements within the Court's holding in McLendon had been demonstrated by the evidence of record, and VA has a duty to afford the Veteran a VA examination and obtain a medical nexus opinion. Therefore, the Board finds that a VA examination and medical opinion are necessary for determining the nature and etiology of any acquired psychiatric disorder which is demonstrated by the Veteran. Moreover, the laws and regulations concerning service connection claims for PTSD (specifically, 38 C.F.R. § 3.304(f)) have been amended during the pendency of this appeal. The Veteran has not been notified of these amendments. If, as here, the record has a procedural defect with respect to the notice required under the Veterans Claims Assistance Act of 2000 (the VCAA), this may not be cured by the Board. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, upon Remand, the RO should afford the Veteran with complete VCAA notice, to include the amendments to 38 C.F.R. § 3.304(f) because the Board is without authority to do so. Accordingly, the case is REMANDED for the following action: 1. The RO must assure that all notice and development required by the VCAA has been accomplished, to include providing the Veteran with notice of the amendments to 38 C.F.R. § 3.304(f), effective July 13, 2010. 2. The RO must schedule the Veteran for a VA examination (conducted by a psychologist or a psychiatrist) to determine the nature and etiology of any diagnosed acquired psychiatric disorder which may be present, to include PTSD and depressive disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, to include the Veteran's VA treatment records diagnosing PTSD and depressive disorder, as well as the lay statements submitted by the Veteran which describe his in-service stressors. If PTSD cannot be diagnosed, the examiner should specifically state which DSM-IV criteria are not met. For each diagnosed acquired psychiatric disorder, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that the disorder is causally or etiologically related to the Veteran's active service, to include his assertions that he unloaded the bodies and remains of U.S. servicemen killed in Vietnam while stationed at Travis Air Force Base from August 1968 to January 1969. In forming this opinion, the VA examiner must consider the Veteran's complete medical history. 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 a conclusion as it is to find against it. In rendering the opinion, the examiner should consider that the phrase "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 a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. 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. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted to the fullest extent, the Veteran and his private attorney should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ U. R. POWELL 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).