Citation Nr: 1320505 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-03 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from October 1974 to September 1976, and in the Army National Guard from December 1977 to October 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from December 1997 and December 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Cleveland, Ohio, and Roanoke, Virginia, respectively, which denied his request to reopen his previously denied claim for service connection for PTSD. The Veteran was scheduled to appear before a Veterans Law Judge (VLJ) in a personal hearing at the Louisville RO in January 2012. He has since submitted a written statement asking that his hearing be canceled, and has not since requested the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(e), 20.704(e) (2012). This 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran first filed a claim to service connect PTSD in August 1995. At that time, the RO made separate requests for his service treatment records (STRs) from his first period of service with the U.S. Army and from his second period of service with the Army National Guard. On the request for records dating from October 1974 to September 1976, there is a notation that this request was to be resubmitted in 90 days. There is no documentation of a follow up attempt made to obtain records from this time period. The request for records dating from December 1977 to October 1981 indicates that the "available" records were forwarded. Some of the Veteran's STRs from his first period of service are located in the file, but they are not complete. It is unclear whether all of his available STRs have been forwarded, as the file does not contain a memorandum or notation indicating as such. Accordingly, and in light of the promulgation of the Veterans Claims Assistance Act of 2000 since the Veteran's initial claim was filed, further attempts must be made to obtain the entirety of his STRs and service personnel. In the event such records are unavailable, the Veteran must be notified and given the opportunity to respond. As the Veteran served with the Army National Guard, the dates of all periods of ACDUTRA and INACDUTRA should be verified. The Veteran has not yet been afforded a VA examination in regard to his PTSD. In November 2009, a formal finding was made that insufficient information had been provided to verify the Veteran's purported stressors. Since that time, however, VA has amended its rules and relaxed the standard by which in-service stressors must be established. Effective July 13, 2010, in certain cases, stressors that are related to the Veteran's "fear of hostile military or terrorist activity" need not be independently corroborated, and can consist entirely of lay statements. 38 C.F.R. § 3.304(f)(3) (2012). This new regulation requires that (1) a VA psychiatrist or psychologist, or contract equivalent, confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and, (3) the Veteran's symptoms are related to the claimed stressor. Id. His claimed stressors, which have not been corroborated, should be considered under the new, relaxed standard. Finally, updated VA medical treatment records since November 2009 should be obtained and associated with the file. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, dated since November 2009. 2. Make arrangements to obtain a complete copy of the Veteran's service treatment records, to include clinical records, and service personnel records for his periods of duty from October 1974 to September 1976 and December 1977 to October 1981. If any such records cannot be found, the RO should request specific confirmation of that fact, make a formal finding of such, and properly notify the Veteran of such unavailability. 3. Verify the dates of any periods of ACDUTRA or INACDUTRA. 4. Thereafter, schedule the Veteran for a VA psychiatric examination by a psychiatrist or psychologist. The claims file and a complete copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination, and the examiner should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner is asked to provide an opinion as to whether the Veteran meets the DSM-IV criteria for PTSD. If a diagnosis of PTSD is made, the examiner should (1) specify which alleged stressor or stressors was sufficient to produce PTSD based on a fear of hostile military or terrorist activity during service; (2) list each diagnostic criterion to support the diagnosis of PTSD has been satisfied; and, (3) discuss whether there is a link between the current symptomatology and one or more of his in-service stressors sufficient to produce PTSD. In offering these assessments, the examiner must acknowledge and comment on the lay evidence of record regarding the Veteran's fear during maneuvers of being sent to combat, his fear that bomb simulators were real bombs, his fear that he would perish in his tank, his guilt that he was not sent to combat, his various physical altercations with other soldiers, and his witnessing a friend fall from a third-story window. The examiner is asked to also address any additional lay statements, if offered by the Veteran, even if unsupported by the evidence of record. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Then, review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested report does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 6. Finally, readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time 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). 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). _________________________________________________ P.M. DILORENZO 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).