Citation Nr: 1325744 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 07-21 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from January 1958 to April 1966. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Albuquerque, New Mexico, which denied service connection for PTSD. The Veteran appeared at a hearing before a local hearing officer at the RO in October 2007. A transcript of the hearing is of record. In an October 2010 decision, the Board denied service connection for PTSD. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 single judge memorandum decision, the Court vacated the October 2010 Board decision and remanded the matter for further development consistent with the Court decision. As discussed in the remand section below, the Board has expanded the issue of service connection for PTSD to the broader issue of entitlement to service connection for a psychiatric disorder, to include PTSD. 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 With regard to the claim of service connection for PTSD, the Board notes the holding of the Court in Clemons v. Shinseki, 23 Vet. App. 1 (2009), and has concluded that it is applicable here. In Clemons, the Veteran specifically requested service connection for PTSD; the Board narrowly construed the claim and denied service connection for PTSD based on the absence of a current diagnosis, but the medical record also included diagnoses of an anxiety disorder and a schizoid disorder. The Court, in vacating the Board's decision, pointed out that a claimant cannot be held to a "hypothesized diagnosis - one he is incompetent to render" when determining what his actual claim may be. The Court further noted that the Board should have considered alternative current conditions within the scope of the filed claim. Id. In this case, while the claim has been adjudicated by the RO and certified to the Board as a claim for service connection for PTSD, the issue should be expanded to include all psychiatric disorders. Under Clemons, other diagnoses are to be considered as part of the underlying claim. To date, however, the RO has not adjudicated this claim so broadly as to incorporate psychiatric diagnoses other than PTSD. The Board observes that VA treatment records also note active problems of depression. The RO has also not provided adequate notification addressing what is needed for a claim incorporating such a diagnosis. This is significant because the statutory and regulatory provisions addressing PTSD claims, as contained in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), differ from the provisions addressing other service connection claims. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Corrective notification action, as well as further adjudication, is thus needed. 38 C.F.R. §§ 3.159(b), 19.9. In the February 2013 decision, the Court indicated that VA had not fulfilled its duty to assist. The Court, while acknowledging that the Veteran provided a date range in which he thought he landed in Cam Rahn Bay with regard to his claimed stressors, also noted that the record demonstrated that the Veteran suffered from memory problems. The Court further observed that the RO made no attempt to gather more information about the specific date of the stressor from the Veteran after it determined that there was no record of an attack at Cam Rahn Bay from November 1965 through January 1966. The Court indicated that VA and the Board failed to ensure that all relevant service records were obtained. The Court indicated, on remand, that the Board must obtain the Veteran's unit records for his entire period of service in Vietnam and records "that are relevant to the Veteran's claim." The Court also noted that the Board should determine, after gathering the relevant records, whether a VA medical examination was necessary to satisfy its duty to assist. Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2013). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id. See also 38 C.F.R. § 4.125(a). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborated the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, during the course of the appeal, VA amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the veteran must have experienced, witnessed, or have been confronted by 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, and the veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39852 (July 13, 2010) (now codified at 38 C.F.R. § 3.304(f)). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. These revised regulations became effective July 13, 2010, and apply in cases like the Veteran's which were appealed to the Board prior to July 13, 2010, but not decided by the Board as of that date. 75 Fed. Reg. 41092 (July 15, 2010) (now codified at 38 C.F.R. § 3.304(f)). In light of the amendment to VA regulations discussed above, the Board finds that a remand is also necessary to afford the Veteran a VA examination with a VA psychiatrist or psychologist or a psychiatrist or psychologist with whom VA has contracted. While the Board notes that an October 2006 VA psychologist rendered Axis I diagnoses of PTSD, chronic, severe, secondary to combat, and alcohol abuse, in complete remission for nine months, the examiner did not have the benefit of the claims folder for review. Moreover, the Veteran has not been afforded a VA examination throughout the course of this appeal. VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Based upon the above, the Veteran should be afforded a VA examination to determine the nature and etiology of the claimed disability and its relationship, if any, to his period of service. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim on appeal, now characterized as entitlement to service connection for a psychiatric disorder, to include PTSD. This letter must inform the Veteran of the information and evidence necessary to substantiate the claim, in terms of 38 C.F.R. §§ 3.303, 3.307, and 3.309, along with the new regulations concerning PTSD, and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. 2. Request that the Veteran provide specific details with regard to the claimed stressor of being attacked/under fire while at Cam Rahn Bay. Service personnel records reveal that the Veteran was in Vietnam from June 1965 to April 1966. 3. Obtain and associate with the claims folder copies of the Unit History of the 565th Transport Co. for the time period from June 1965 through April 1966. 4. Schedule the Veteran for a VA psychiatric examination in order to determine the nature and etiology of any psychiatric disorder(s), including PTSD, which may be present. The claims file and all other pertinent records must be made available to and reviewed by the examiner and such review should be noted in the report. Any further indicated special studies, including psychological studies, should be accomplished. The examiner should conduct the examination with consideration of the current criteria for PTSD. The examination report should include a detailed account of all pathology present. As it relates to the claim of service connection for PTSD, the VA examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) that: 1) the Veteran experienced, witnessed, or was confronted by 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, and the Veteran's response to that event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror; 2) that the claimed stressor is adequate to support a diagnosis of PTSD; and 3) that the Veteran's symptoms are related to the claimed stressor. Alternatively, if PTSD is not found on examination, the examiner must delineate all diagnoses reached to account for the Veteran's psychiatric symptomatology. The examiner must also express an opinion as to whether any current psychiatric disorder other than PTSD found on examination had its onset in service or is otherwise is related to service. The report of examination should include the rationale for all opinions expressed. Indications of exaggerations, if any, should be noted for the record. 5. To help avoid future remands, the RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above development, readjudicate the remaining claim. If the disposition remains unfavorable, the RO should furnish the Veteran's attorney with a supplemental statement of the case (SSOC) and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if appropriate. 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 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). _________________________________________________ K. J. ALIBRANDO 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).