Citation Nr: 1325740 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 06-19 822 ) 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: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran had active service from December 1944 to November 1946. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2005 decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for rhinitis and a psychiatric disorder, including PTSD. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This case was previously before the Board in February 2008, October 2008, March 2010, and May 2012. In February 2008, the Board remanded the case for further development. Thereafter, in October 2008, the Board denied the Veteran's claims and he appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to the terms of a joint motion for remand (JMR) dated in March 2009, the Court vacated the Board's decision and remanded the matter for compliance with the terms of the joint motion. The Board subsequently remanded the appeal for additional development in March 2010. Thereafter, in May 2012, the Board denied the claims of service connection for a chronic nasal disorder and psychiatric disorder including PTSD. The Veteran appealed that decision to the Court. By a February 2013 Order, the Court, pursuant to a JMR dated in January 2013, vacated the Board's decision to the extent it denied service connection for an acquired psychiatric disorder including PTSD, and remanded that claim for action consistent with the terms of the JMR. The appeal on the remaining issue (service connection for a chronic nasal disorder) was dismissed. For the reasons detailed below, the appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror". DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen v. Brown, 10 Vet. App. 128, 141 (1997). In Zarycki v. Brown, 6 Vet. App. 91 (1993), the United States Court of Appeals for Veterans Claims (Court) held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD. 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 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). The Veteran contends, in essence, that service connection should be established for a psychiatric disorder, claimed as PTSD, due primarily to an incident when a monkey jumped on his back while serving in the Philippines during World War II. The Veteran also reported that he was involved in a motor vehicle accident in service when an ambulance overturned while taking him to the hospital for treatment of a fever. Following the February 2013 Court Order, the Veteran submitted additional evidence in support of his claim to include an internet article about wild monkeys; an internet article on a study of PTSD in children from animal attacks; a lay statement from his niece; and an additional affidavit from the Veteran detailing purported stressors, several of which appear to have been advanced for the first time. As it does not appear the Veteran explicitly waived initial consideration of such evidence by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304(c) a remand is required in this case for the RO to consider this evidence in the first instance. Further, as the Veteran has indicated additional stressors from what was previously considered, he should be asked to provide additional details regarding these stressors. The Board further notes that the January 2013 JMR, as well as a July 2013 statement from the Veteran's attorney, criticized the adequacy of the February 2011 VA examination (and April 2011 addendum) that was conducted regarding the Veteran's psychiatric disorder claim. A new examination should be provided. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his psychiatric disorder since September 2011. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. The AMC/RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric symptomatology. Further, the AMC/RO should request the Veteran to provide additional details regarding his purported stressor(s). The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and etiology of his acquired psychiatric disorder. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder found to be present was incurred in the Veteran's active service, or if PTSD is diagnosed, whether it is the result of an in-service stressor. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. In any event, if any opinion cannot be provided without resort to speculation, this conclusion should be reconciled with the opinions offered by Dr. Anthony Yacona and Kenneth Tucker; LMHC, LHD. 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in October 2011, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).