Citation Nr: 1325536 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-19 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to July 1967. The records show he had service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2009, the Veteran and his wife testified at a hearing in front of the Decision Review Officer. A copy of the hearing transcript is of record. Although the claim has been characterized as entitlement to service connection for PTSD, the Veteran has also been diagnosed with major depressive disorder. To adequately reflect the claim, the issue has been amended accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A review of the Veteran's Virtual VA electronic claims file is negative for any additional information or evidence pertinent to the claim on appeal. 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 entitlement to service connection for an acquired psychiatric disorder, specifically PTSD. He argues that he has PTSD which is due to his experiences while serving in Vietnam. During the pendency of this appeal, effective July 13, 2010, 38 C.F.R. 3.304(f), was amended as follows: "If a stressor claimed by a veteran is related to that 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 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 that veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor." See 75 Fed. Reg. 39843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must 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. The liberalizing criteria contained in the new § 3.304(f)(3) will be applied to PTSD service-connection claims that are pending as of the effective date of the regulation (July 13, 2010) and to claims filed on or after this effective date. Thus, the amended regulation applies in this. VA outpatient treatment records of April 2007 show the Veteran reported that while in Vietnam, he was "scared to death." The Veteran has not been given notice of the amendment to the regulations. On remand, adequate notice must be provided. Post service treatment records clearly show a diagnosis of PTSD; however, the Veteran has not been afforded a VA examination to determine if the currently diagnosed PTSD is due to his experiences in service, to include as a result of fear of hostile action. Therefore, on remand, a VA examination must be obtained. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Finally, in February 2010 the Veteran stated he had been treated at the VAMC Mountain Home in Tennessee. A review of the record shows that the most recent VA outpatient treatment records associated with the claim file are from 2008. On remand, any outstanding treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to obtain any outstanding VA treatment records identified by the Veteran. In particular, attempts should be made to obtain all the Veteran's outstanding treatment records from VAMC Mountain Home in Tennessee, from December 2008 through the present for treatment of any psychiatric disorder. 2. Send a letter to the Veteran informing him of the July 2010 revisions to the regulations pertaining to service connection for PTSD under 38 C.F.R. § 3.304(f). 3. Thereafter, the Veteran should be afforded an examination by a VA psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder. The claim folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner should review the claim file prior to completing the examination report. Based on the review of the claim file and examination of the Veteran, the examiner should identify: whether the Veteran currently has an acquired psychiatric disorder, to include PTSD under the diagnostic criteria of DSM-IV; and if so, whether such diagnosed psychiatric disorder at least as likely as not (i.e., at least 50 percent probable) originated during service or is etiologically related to service to include his experiences while serving in Vietnam and/or fear of hostile action during active service. The VA examiner should consider and discuss the Veteran's reported history and contentions, to include the notation in the August 2007 VA mental health treatment record where he stated he was "scared to death" while in Vietnam. The rationale for all opinions expressed must be provided. If the examiner is unable to provide the requested opinion, he or she must explain why the opinion cannot be provided. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the AMC/RO should adjudicate the expanded claim for service connection for acquired psychiatric disorder, in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted to the Veteran's satisfaction, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. 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). _________________________________________________ DAVID S. WIGHT 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).