Citation Nr: 1318862 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 10-36 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from November 1967 to October 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. During the pendency of the appeal, the Veteran moved to Alabama. The Veteran requested a Board personal hearing in August 2010. Because the Veteran failed to appear at the hearing, the Board hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704(d) (2012); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). The issue on appeal was previously remanded by the Board in December 2012 for further evidentiary development of obtaining the Veteran's records from the Social Security Administration (SSA). This was accomplished, and the claim was readjudicated in a March 2013 Supplemental Statement of the Case (SSOC). For this reason, the Board concludes that there was compliance with its prior instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim for service connection for an acquired psychiatric disorder. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). 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) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1) (2012); see also 38 U.S.C.A. § 1154(b) (West 2002). "Engaged in combat with the enemy" requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile instrumentality. VAOPGCPREC 12-99. Upon preliminary review, the Board finds that further development is necessary before a decision on the merits may be made on the issue of service connection for an acquired psychiatric disorder. The RO determined that the Veteran did not provide enough information about his claimed stressors to attempt any verification. However, VA has revised the regulations regarding stressor verification. Under the revised PTSD regulation, if a stressor claimed by a veteran is related to a 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 a veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of a veteran's service, then the requirement for corroborating the stressor is eliminated. 38 C.F.R. § 3.304(f)(3) (as amended 75 Fed. Reg. 39843 (effective July 12, 2010)). "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) (as amended 75 Fed. Reg. 39843 (effective July 12, 2010)). In this case, the Veteran was diagnosed with PTSD in February 2008. The record also contains statements from the Veteran describing several claimed stressors including seeing many fellow service members killed and wounded, including seeing a fellow service member shot in the head by a sniper. However, the Veteran's statements have not been consistent (see VA examination of September 2005). Under 38 C.F.R. § 3.304(f)(3), because the Veteran was in Vietnam, a hostile enemy area, the Board finds that verification is not required regarding some of the reported stressors, specifically, hostile enemy actions of sniper fire upon the Veteran and fellow service members during beach landings. The Veteran served upon the USS Tulare, which conducted troop and cargo "mike boat" beach landings at Da Nang, Chu Lai, Cam Ranh Bay, and Vung Tau from 1966 to 1972, which suggests proximity to hostile enemy military activity. However, once again, these statements have not been consistent. Based on the information above, the Board finds that a VA examination is required to determine whether the Veteran's current PTSD is related to any of the reported in-service stressful events during active service in Vietnam based on all the evidence. The VA examiner should specifically address whether any diagnosis of PTSD is due to fear of hostile military activity, whether the claimed stressors are adequate to support a diagnosis of PTSD, and whether the claimed stressors led to the diagnosed PTSD based on all the evidence. The most recent VA treatment records in the claims file are dated in April 2010. Because there may be additional VA treatment records pertinent to the claim for service connection for an acquired psychiatric disorder, they should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board notes the Veteran's indication of treatment for depression in VA outpatient care in New Haven, Connecticut, in 1972, but this indication is very unclear (see statement in September 26, 2005, page 33 under "past psychiatric history"). The Board does not wish to delay the case more than it already has been delayed. Based on the Veteran's statements and a review of the records the Board finds that an effort by the RO to locate this record would not be likely to succeed. The Board does not have a copy of this record and asks the Veteran to make an effort to obtain a copy of this record himself, if possible. The Board understands the Veteran's frustration in this case. However, as noted above, the Veteran's statements have not always been consistent, he does not remember dates (sees treatment record of April 2010) and the SSA records did not provide much evidence in support of his claim that he is disabled as a result of any disability related to service from November 1967 to October 1971, more than 40 years ago. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from the VA Medical Center in Durham, North Carolina, and Birmingham, Alabama, dated from April 2010 to the present. If no records can be found or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e) (2012). 2. Obtain the Veteran's service personal records to confirm his service in Vietnam. 3. Thereafter, the Veteran should be scheduled for a VA psychiatric examination to ascertain the nature and etiology of any current psychiatric disability, to specifically include PTSD. The examiner should review the relevant documents in the claims file in conjunction with the examination, examine the Veteran, conduct any tests deemed medically advisable, and render a diagnosis(es) for any current psychiatric disability. The examiner is asked to provide the following opinions: A. Are the reported in-service stressors adequate to support a diagnosis of PTSD? Please specifically state whether or not the underlying stressor(s) upon which a PTSD diagnosis is rendered is(are) related to a fear of hostile military activity (indication of exaggeration should be noted in the record). B. Is it at least as likely as not (a 50 percent or higher degree of probability) that PTSD, or any other diagnosed psychiatric disorder, is related to reported in-service stressors? Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale should be provided for the opinion given. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue of service connection for an acquired psychiatric disorder should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO/AMC should furnish to the Veteran an appropriate Supplemental Statement of the Case (SSOC), and afford them the appropriate time period for response. 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). It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). 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). _________________________________________________ JOHN J. CROWLEY 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).