Citation Nr: 1324814 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-01 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1968 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2010, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the Veteran's file. In a decision in April 2012, the Board denied the claim of service connection for posttraumatic stress disorder. The Board referred to the RO the claim of service connection for a psychiatric disorder other than posttraumatic stress disorder. The Veteran then appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2012, in an order, the Court granted a Joint Motion for Remand, vacated the Board's decision and remanded the matter for readjudication consistent with the Joint Motion. The appeal is REMANDED to the RO. REMAND In the joint motion granted by the Court, the parties agreed that the Veteran's claim of service connection for posttraumatic stress disorder was based an alleged in-service personal assault. The parties also agreed that the Board did not provide an adequate statement of reasons and bases for addressing 38 C.F.R. § 3.304(f)(5) as it applies to the duty to notify and the duty to assist, including whether a VA medical opinion was needed to assess the etiology of posttraumatic stress disorder. The parties agreed too that the Board must address evidence of a change in the Veteran's behavior, which is potentially favorable to the claim. Accordingly, the case is REMANDED for the following action: 1. Ensure compliance with the notice requirements of 38 C.F.R. § 3.304(f)(5), pertaining to an in-service personal assault, PTSD personal-assault letter and questionnaire, advising the Veteran that evidence from sources other than service records may corroborated the Veteran's account of the in-service stressor incident. And allow the Veteran the opportunity to furnish the evidence or advise VA of potential sources of such evidence. 2. Obtain VA records since 2008. 3. Ask the appropriate federal custodian of Army records for: a). A report of psychiatric evaluation at the Neuropsychiatric Service, 121st Evacuation Hospital in South Korea in April 1970 in conjunction with an evaluation for administrative discharge due to unsuitability. b). The proceedings of a summary court martial in March 1970 at the 95th Transportation Company (TS), USARPAC-Korea. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 4. Afford the Veteran a VA examination by a VA psychiatrist or psychologist with psychological testing, including the Clinician-Administered PTSD Scale (CAPS) test to determine: a). Whether the Veteran has PTSD and, if so, b). Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that PTSD is related to the Veteran's account of a noncombat stressor incident in April 1969. In formulating an opinion, in the context of the diagnosis of PTSD, the VA examiner is asked to address the clinical significance of the Veteran's subsequent behavior, resulting in disciplinary action (five unauthorized absences over the period from July 1969 to February 1970) and a single incident of insubordination in March 1970, as evidence that the stressor incident occurred. The Veteran's file must be provided to the VA examiner for review. 5. After completion of the development, adjudicate the claim of service connection for posttraumatic stress disorder, applying 38 C.F.R. § 3.304(f)(5). If the benefit sought is denied, then provide the Veteran and his attorney a supplemental statement of the case and return the case to the Board. 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). The 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). _________________________________________________ George E. Guido Jr. 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).