Citation Nr: 1316074 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-15 109 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from May 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the RO. In that rating decision, the RO denied entitlement to service connection for PTSD. 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. REMAND As an initial matter, the Board notes that there are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f). 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 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. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes experiencing, witnessing or being 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. Id. The Veteran claims that he has PTSD due to multiple stressors as a result of his service in Vietnam. He reported that in April 1969, while on patrol in Saigon, a bomb exploded in front of a jeep he was riding in. As his jeep passed the area, he witnessed the carnage the bomb explosion caused. He also reported that in July 1969 he witnessed a 9-year old child detonate a bomb in a bunker a few feet from where he stood. Additionally, he reported that a friend in his unit was killed on patrol duty in an area that he also regularly patrolled. Finally, he reported that he patrolled the outer limits around Saigon and near the airport and witnessed lots of death and destruction. He alleged that these events and his overall time in Vietnam left him in fear for his life ("I thought I would never see the U.S. again"). In an April 2009 VA psychiatric outpatient note, the psychiatrist recorded the Veteran's reported history of his distressing memories of his service in Vietnam and the current manifestations of his claimed psychiatric disorder. On objective examination, the Axis I diagnosis was adjustment disorder with anxiety and PTSD symptoms, mild. In an April 2010 VA psychiatric outpatient note, the psychiatrist recorded the Veteran's reported history of his distressing memories of his service in Vietnam and the current manifestations of his claimed psychiatric disorder. On objective examination, the Axis I diagnosis was PTSD, moderate delayed. To date, the Veteran has not been afforded a VA examination that addresses the etiology of his claimed PTSD. Under the circumstances, the Board finds such examination is warranted. See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006). To that end, a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). As noted, in the April 2009 VA psychiatric outpatient treatment note, the Veteran was diagnosed with adjustment disorder with anxiety and PTSD symptoms. Thus, the examination should also address the etiology of any other acquired psychiatric disorder diagnosis (i.e., whether an acquired psychiatric disorder, other than PTSD, had an onset due to service). Finally, the Board notes that in the April 2010 VA psychiatric outpatient treatment note the Veteran reports that he is in receipt of Social Security disability benefits. The records pertaining to the award of such benefits by the Social Security Administration (SSA) have not been associated with the record certified for appellate review. Such records may be of significant probative value in determining whether service connection for the disability at issue may be granted. As the Court held in Lind v. Principi, 3 Vet. App. 493, 494 (1992), that the duty to assist requires the VA to attempt to obtain records from other Federal agencies, including the SSA, when the VA has notice of the existence of such records. Thus, the RO must request complete copies of the SSA records utilized in awarding the Veteran disability benefits. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to obtain copies of all records referable to the Veteran's SSA disability benefits application (including any SSA determination on his claim for benefits and all medical records underlying such determination). All records received by the RO must be added to the claims file. If the search for such records is unsuccessful, documentation to that effect must be added to the claims file. 2. The Veteran should then be scheduled for a VA psychiatric examination. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the psychiatrist or psychologist performing the examination for review of the case. A notation to the effect that this record review took place should be included in the report of the psychiatrist or psychologist. Based on examination of the Veteran, any testing results, and review of the record, to include any statements or other documents referencing the Veteran's fear associated with hostile military activity, the psychiatrist or psychologist should then express an opinion as to whether such fear is sufficient to have resulted in current PTSD, and, if so, whether the Veteran's PTSD symptoms are related to such stressor. In addition, any other psychiatric impairment found should be set out. If an acquired psychiatric disorder other than PTSD is found, the psychiatrist or psychologist is asked to opine as to whether it is at least as likely as not (50 percent chance or greater) that the acquired psychiatric disorder, other than PTSD, onset during the Veteran's period of service or is otherwise etiologically related to the Veteran's period of service. The examiner should utilize the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in arriving at diagnoses and identify all existing psychiatric diagnoses. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2012). 4. After completion of the above development, the Veteran's claim should be readjudicated. If the determination remains adverse to him, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ H. N. SCHWARTZ 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).