Citation Nr: 1317904 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-45 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from May 1965 to May 1967. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a January 2008 rating decision for the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied entitlement to service connection for PTSD and hearing loss. During the course of the appeal, in November 2009, service connection was granted for a bilateral hearing loss disability, thus satisfying the Veteran's appeal in full regarding that issue. In characterizing the issue on appeal, the Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the Board erred in not considering the scope of a Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, psychiatric diagnoses of record and other information. In light of this holding, and the fact that the Veteran has received diagnoses of anxiety, depression, and panic disorder, the issue on the title page has been recharacterized as listed above. 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 As a preliminary matter, the Board notes that a May 2007 Notice of Award letter shows that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). However, copies of the records relied upon by SSA in rendering this decision are associated with the claims folder. VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Because VA is on notice that there are records that may be applicable to the Veteran's claim and because these records may be of use in deciding the claim, these records are relevant and should be obtained. 38 C.F.R. § 3.159 (c) (2012). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a Veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required- provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b) (West 2002); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Under the legal authority in effect at the time the Veteran originally filed his claim in February 2007, if the alleged stressor was not combat related, then the Veteran's lay testimony, alone, would not be sufficient to establish the occurrence of the alleged stressor; rather, corroborating evidence would be needed to support the claim for service connection. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). See also Zarycki, 6 Vet. App. at 98; Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). The Board notes, however, that, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims such as the Veteran's, which were appealed before July 13, 2010, but not yet decided by the Board. The amendment indicates 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. See 75 Fed. Reg. 39843 (July 13, 2010). For purposes of the amendment, "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. Id. In this case, it is not shown that the Veteran served in combat. The Veteran has claimed that while on active duty, he gave the order for a building to be hit by artillery fire. He said that the building was full of women and children. According to the Veteran's DD-214, his military occupational specialty was 13E40, operations and intelligence assistant. Additional service personnel records reflect that from November 1965 through November 1966, the Veteran served as a cannoneer with Battery B, 5th Battalion, 38th Artillery, 2nd Infantry Division in Korea. At that time, he was a Corporal, and he was promoted to Sergeant. The 2nd Infantry Division was stationed in the DMZ. The Korean DMZ conflict began in 1966. Given that the heightened tensions in the region at the time, the Board is of the opinion that a VA would be probative to ascertain whether the Veteran current has PTSD that is related to a fear of hostile military or terrorist activity. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain all of the Veteran's records from the Social Security Administration. All attempts to locate these records must be documented in the claims folder. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. Then, the AMC/RO should arrange for the Veteran to undergo a VA psychiatric examination in order to determine the nature, extent of severity, and etiology of any psychiatric disorder(s) which may be present (under DSM-IV criteria), to include PTSD. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Any further indicated tests and studies to include psychological studies should be conducted. The examiner should provide a diagnosis for any psychiatric disorder found on examination. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disorder, to include PTSD if diagnosed, is related to any incident of the Veteran's active duty service to include a fear of hostile military or terrorist activity. Any opinions expressed by the examiner must be accompanied by a complete rationale. 3. After completing the requested action, and any additional notification and development deemed warranted, readjudicate the Veteran's claim for service connection, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period of time within which to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ DAVID L. WIGHT 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).