Citation Nr: 1325846 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-21 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran has active service from November 1966 to October 1968. This appeal to the Board of Veterans' Appeals (Board) is from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, confirmed and continued a February 2009 denial of service connection for PTSD. In a February 2009 statement, the Veteran asserted entitlement to service connection for hypertension, to include as secondary to herbicide exposure. There is no indication that the RO as the Agency of Original Jurisdiction (AOJ) has initially adjudicated this claim. Since the Board does not have jurisdiction over the raised claim, it is referred to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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 At the time of his Substantive Appeal, received in August 2011, the Veteran reported that he was in the process of "getting back into" VA mental health treatment to complete his psychiatric evaluation. Review of the claims file, including Virtual VA, reveals that the most recent VA treatment records, with the exception of the Veteran's June 2011 VA psychiatric examination, are dated in December 2010. As such, a request for additional records must be made. The VA examiner, in June 2011, determined that there was no evidence of a current acquired psychiatric disorder, to include PTSD. VA treatment records currently associated with the claims file are silent for any diagnoses of an acquired psychiatric disorder, to include PTSD. While private treatment records dated from 1978 to 1984 indicate that the Veteran was treated for a number of acquired psychiatric disorders, such are dated prior to the current appellate period and may not serve as evidence of a current disability. Thus, if, and only if, the updated VA treatment records sought by this Remand reveal that the Veteran has been diagnosed with an acquired psychiatric disorder, to include PTSD, the RO/AMC should schedule the Veteran for a new VA examination to determine the etiology of any such disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's treatment records maintained by the VA Medical Center (VAMC) in Little Rock, Arkansas, dated from December 2010 to the present. If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records. 2. If, and only if, the Veteran's updated VA treatment records reveal a diagnosis of an acquired psychiatric disorder, to include PTSD, schedule him for a new VA psychiatric examination to determine the etiology of any such disorder. The examiner should specifically consider the Veteran's lay statements as to his in-service responsibilities in the Republic of Vietnam driving trucks, and exposed to land mines, small arms fire, and sniper attacks; as well as his experiences with a heavy rocket attack at the DaNang airport, rocket attacks and observing dead bodies at Camp Eagle, and an episode of friendly fire wherein members of his company were killed. The examiner should consider any lay statements from the Veteran as to any in-service and post-service psychiatric symptoms. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service treatment records to provide a negative opinion). (a) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that any current acquired psychiatric disorder, except PTSD, was incurred in service, or is otherwise related to service. The VA examiner should be made aware of the amendment to 38 C.F.R. § 3.304 (f) (effective July 13, 2010), which indicates that: If a stressor claimed by a Veteran is related to a 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 a 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 a Veteran's service, a 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 a Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. (b) In light of above change in the law, the VA examiner should render an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the claimed stressors are adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressors. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The claims file, including a copy of this Remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the examiner cannot answer the above questions without resorting to mere speculation, the examiner should state why this is so. 3. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case 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). (Continued on the next page) 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). _________________________________________________ S. L. Kennedy 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).