Citation Nr: 1322342 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-17 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from October 1968 to March 1970. This matter comes to the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for PTSD. The Board has reframed the issue to include all psychiatric disorders, per the Veteran's representative's request and per Clemons v. Shinseki, 23 Vet. App. 1 (2009). In April 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing at the RO. 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 service connection for a psychiatric disorder claimed as PTSD. He testified that he was involved in combat situations in Vietnam, which he claims caused his PTSD. His DD Form-214 shows that the Veteran earned, in pertinent part, the Combat Action Ribbon. The National Personnel Records Center (NPRC) also verified that the Veteran served in Vietnam from April 9, 1969 to March 6, 1970. Although the service treatment records are negative for any findings of PTSD, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d). Therefore, any reported stressor regarding the Veteran's combat service in Vietnam will be presumed as true. VA regulation at 38 C.F.R. 3.304(f) also has been amended by the Secretary of Veterans Affairs, by the addition a new paragraph which liberalizes, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. The paragraph reads as follows: 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 posttraumatic stress disorder 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. For purposes of this paragraph, "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 added in 75 Fed. Reg. 39,843-852 (July 13, 2010). The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010. VA treatment records show a positive PTSD screen in December 2009, but unfortunately for the Veteran, the screen was performed by a VA social worker, and not a psychologist or psychiatrist. The Veteran was scheduled to attend a VA examination in November 2009 but he did not attend. The Veteran testified at the Board hearing that he did not receive proper notice for the examination. As there is no notice letter of record, the Board cannot verify whether or not the letter was sent to the Veteran's last known address. For this reason, another examination should be scheduled. The Veteran also testified that he started receiving ongoing treatment for his PTSD a few years back at the Hines, Jesse Brown, and Oak Lawn VA Medical Centers, as well as the Oak Park Vet Center. Efforts should be made to obtain these records on remand, as well. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from the Hines, Jesse Brown, and Oak Lawn VA Medical Centers, as well as the Oak Park Vet Center dated since September 2009. Document all attempts to obtain these records. If efforts to obtain the records are unsuccessful notify the Veteran and indicate what further steps VA will make regarding his claim. 2. Schedule the Veteran for a VA mental health examination with a psychiatrist or psychologist. A copy of the letter notifying the Veteran of the date and time of the examination, and the consequences for failure to attend the examination, should be included in the claims file. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current psychiatric disorders found to be present, i.e., PTSD, depression, etc. The examiner also 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 had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge the Veteran's combat stressors are conceded based on his receipt of a Combat Action Ribbon for his service in Vietnam. If the Veteran meets the DSM-IV criteria for PTSD, the examiner must determine whether the Veteran's PTSD can be related to the stressors reported by the Veteran. The examiner must provide an opinion as to whether the Veteran's claimed stressors are adequate to support a diagnosis of PTSD based on a fear of hostile military activity during service, and whether his symptoms are related to the claimed stressors. 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. 3. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 4. Finally, readjudicate the claim on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). _________________________________________________ K. PARAKKAL 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).