Citation Nr: 1324102 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-41 853 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to an initial disability rating in excess of 10 percent prior to May 18, 2006 and in excess of 20 percent beginning on that date for the service-connected degenerative joint disease and residual arthrotomy of the right knee (right knee disability). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2004 and March 2008 rating decisions of the RO in Chicago, Illinois and Cleveland, Ohio, respectively. In March 2013, the Board reopened claim of service connection for an acquired psychiatric disorder including PTSD. The Board noted that in light of Clemmons v. Shinseki, 23 Vet. App. 1 (2009), the issue was recharacterized as service connection for an acquired psychiatric disorder including PTSD. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In March 2013, the Board found the January 2012 VA DBQ medical opinion to be inadequate because the examiner did not provide an opinion regarding the etiology of the diagnosed anxiety disorder and remanded the issue for an addendum opinion. Subsequently, the same examiner performed a VA examination in April 2013 and concluded that it was less likely than not that the Veteran's PTSD was related to service based on the rationale that the Veteran's stressor of being in a hospital that was bombed in the Republic of Vietnam was not corroborated by his service treatment records. The April 2013 VA opinion is inadequate as stressor corroboration is not necessary when a stressor is related to fear of hostile military or terrorist activity. During the appeal period, effective on July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for veterans without documentation of having engaged in combat with the enemy. See 75 Fed. Reg. 39,843 -39,852 (effective July 13, 2010). During the appeal period 38 C.F.R. 3.304(f)(3) was amended and eliminated the need for stressor corroboration in circumstances in which the service member's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states: 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 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. See 38 C.F.R. § 3.304(f)(3) (codified in 75 Fed. Reg. 39,843 -39,852). In March 2011 and in other statements, the Veteran stated that he feared hostile military activity in Vietnam and that his unit was shelled and many soldiers were wounded. Thus, an addendum opinion is necessary as to whether the Veteran has a diagnosis of PTSD per the DSM-IV criteria that is related to his lay account of fear of hostile military activity in Vietnam. As for the claim for higher ratings for the right knee disability, the Veteran's representative asserted that a contemporaneous examination was warranted as his last examination was in 2011. He noted that, on the 2011 VA examination report, functional loss or impairment was noted along with bilateral knee pain. Therefore a reexamination is needed to determine whether the disability has worsened since the December 2011 VA examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to obtain an addendum opinion from the VA examiner who conducted the April 2013 VA examination. If this examiner is not available, another suitable VA physician should render the opinion. After reviewing the claims folder the examiner must: a.) Determine whether the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. If he does, the examiner must provide an opinion as to whether the PTSD symptoms are related to his fear of hostile military or terrorist activity during service? b.) Offer an opinion, consistent with sound medical principles and in consideration of the Veteran's specific assertions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any other acquired psychiatric disability, to include an anxiety disorder or dysthymia, had its clinical onset during his period of active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 2. The RO then should have the Veteran scheduled for a VA examination in order to ascertain the current severity of the service-connected right knee disability. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The evaluation of the right knee should include all necessary testing, specifically range of motion studies. The examiner should address the range of motion in degrees of flexion and extension and any functional loss due to pain or painful motion (supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion) as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. If feasible, any additional functional loss should be expressed in terms of the degree of additional limitation of motion. A complete rationale must be given for any opinion expressed, foundation for all conclusions should be set forth, and the examiner should consider the Veteran's complaints. If the examiner is not able to provide an opinion, he or she should explain why. 3. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefits sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). _________________________________________________ STEPHEN L. WILKINS 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).