Citation Nr: 1324869 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-08 339 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1967 to March 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Chicago, Illinois RO. In March 2013, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the record. At the hearing, the Veteran submitted additional evidence accompanied by a waiver of RO jurisdiction. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND Regarding the Veteran's claim seeking service connection for PTSD, that is the specific claim adjudicated by the RO and developed for appellate review. However, in an interim precedent decision (Clemons v. Shinseki, 23 Vet. App. 1 (2009)), the U.S. Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record, i.e., that matter(s) of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of a service connection for a psychiatric disability claim (and that such matter(s) is/are before the Board). Notably, the Veteran's treating and evaluating mental health personnel have also assigned him diagnoses of mood congruent delusions, dementia, depression, polysubstance abuse/dependence, paranoid schizophrenia and other functional psychotic disorders, organic mental disorder (chronic brain syndrome), and psychotic disorder. The rating decision on appeal addressed only PTSD. As the RO has not developed or adjudicated the matter of service connection for psychiatric disability other than PTSD, this must be done on remand for compliance with Clemons. The issue is characterized accordingly. Moreover, on July 13, 2010, VA amended its regulations concerning service connection for PTSD by liberalizing the evidentiary standard for an in-service stressor under certain circumstances. Prior to July 13, 2010, VA regulations generally provided that the non-combat veteran's lay testimony alone would not be enough to establish the occurrence of the stressor. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). In such cases, VA required corroborating evidence in the form of service records or other credible statements. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Under the new rule, now codified as 38 C.F.R. § 3.304(f)(3), service connection may be granted for PTSD where the evidence establishes: (1) a current diagnosis of PTSD rendered by a VA psychiatrist or psychologist, or one with whom VA has contracted; (2) an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically linked to the veteran's fear of hostile military or terrorist activity by such a specified medical professional; and (3) that the veteran's PTSD symptoms have been medically linked to such in-service stressor by such a specified medical professional. The regulation defines "fear of hostile military or terrorist activity" to mean 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). These amended provisions apply to service connection claims for PTSD that are received by VA on or after July 13, 2010; were received by VA before July 13, 2010, but have not been decided by a VA regional office as of July 13, 2010; are appealed to the Board on or after July 13, 2010; were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010; or are pending before VA on or after July 13, 2010, because the United States Court of Appeals for Veterans Claims vacated a Board decision on an application and remanded it for readjudication. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010) (changing the applicability date from July 12, 2010 to July 13, 2010). VA treatment records include assessments of PTSD based on the Veteran's accounts of combat stressor events that have not been corroborated. Specifically, he has alleged that when he arrived in Long Bien, Vietnam in to join his assigned unit Headquarters and Headquarters Company (HHC) 34th Support Supply Battalion, the airfield was under attack with mortars and rocket fire. He has alleged that he boarded a bus to travel to his unit and the bus fell under attack by bullets. He has alleged that, before joining with his unit in Quang Tri, he went to a unit of Marines, and a small child entered the mess hall with a grenade which exploded and killed many soldiers. He has alleged that, while stationed with his unit in Quang Tri during the Tet Offensive in early 1968, he worked in a field bakery that was constantly under mortar and rocket attacks; he alleged that at that time, his unit was a support unit for the First Cavalry Division and the Fifth Infantry Division, and that two men from his unit, John Medina and Michael Jackson, were injured in the attacks. He has alleged that while stationed with his unit, he served on guard duty at Wonder Beach and another soldier fell asleep, getting several other soldiers killed and prompting the Veteran to return fire toward the enemy. Finally, he has alleged that he was part of a team that buried the skeletal remains of Vietnamese individuals. Some of the alleged stressors are eminently capable of verification; if an alleged stressor capable of verification is shown to not have occurred, the credibility of the Veteran's accounts would be placed in question. Service personnel records (SPRs) indicate that the Veteran's primary MOS in service was chief baker, and his service records verify that he served in Vietnam from March 1968 to March 1969 with the HHC 34th Support Supply Battalion. The service records suggest that he may have been exposed to circumstances consistent with an allegation of fear of hostile activity. It is unclear from the medical evidence of record whether such alleged stressor alone and the symptoms presented are sufficient to support a diagnosis of PTSD. Hence, further development of the medical evidence in this matter is necessary. Furthermore, a review of the record (including Virtual VA) found that the most recent VA treatment records therein are from February 2011. Records of any VA treatment for the disability at issue since that time are constructively of record and must be secured. Accordingly, the case is REMANDED for the following action: 1. Regarding the matter of service connection for psychiatric disability other than PTSD, the RO should send the Veteran a letter providing him all VCAA-mandated notice, and afford him and his representative the opportunity to respond. The RO should arrange for any further development in the matter suggested by his response. 2. The RO should obtain the Veteran's updated (any not already associated with the claims file) VA treatment records since February 2011. 3. The RO should request additional information from the Veteran regarding his claimed stressors, including the specific location where each incident took place, the approximate date (within a two month period) of each incident, and the unit of assignment at the time each stressful event occurred. The RO should then arrange for exhaustive development, through official channels, to verify the Veteran's alleged stressors, in particular those clearly capable of verification (i.e., any involving U.S. casualties or enemy attack on a specific location on a specific date). The RO must then make specific findings for the record as to what alleged stressors are deemed verified (and which are not). The RO should also make a determination for the record regarding whether or not the veteran's duty assignments were such that he was placed in circumstances of fear of hostile activity. 4. Thereafter, the RO should arrange for the Veteran to be examined by an appropriate VA psychiatrist or psychologist to determine the nature and likely etiology of his psychiatric disability/disabilities. The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. The Veteran must be advised by the RO of what alleged stressor events in service are verified or corroborated by credible supporting evidence, and which are not (and whether the circumstances of his service would have exposed him to fear of hostile activity). Based on examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: (a) Please identify (by medical diagnosis) each of the Veteran's psychiatric disabilities. (b) Specifically, does the Veteran have PTSD based on a verified or corroborated stressor, or fear of hostile activity in Vietnam? Please discuss sufficiency of the verified/corroborated stressor(s) and the symptoms to support such diagnosis. If PTSD is not diagnosed, please identify the criteria for such diagnosis found lacking., (c) As to each and every psychiatric diagnosis other than PTSD, please indicate whether such disability is at least as likely as not (a 50% or better probability) related to the Veteran's military service/documented events therein. The examiner must explain the rationale for all opinions offered. 5. The RO should then review the record and readjudicate the matter on appeal, to encompass all psychiatric diagnoses shown in accordance with Clemons and the revisions in 38 C.F.R. § 3.304(f) that came into effect July 13, 2010. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board. The appellant 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 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 R. Senyk 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).