Citation Nr: 1327561 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 07-32 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD), to include bipolar disorder. 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to November 1974. This appeal to the Board of Veterans' Appeals (Board) arises from a December 2003 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans' Affairs (VA). When this case was before the Board in August 2011, the Board reopened the claim for service connection for a psychiatric disability other than PTSD, to include bipolar disorder. The Board remanded both issues on appeal for additional development. 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 A preliminary review of the record indicates that these claims require additional development. With respect to the Veteran's claim for service connection for a psychiatric disability other than PTSD, to include bipolar disorder, a September 2003 mental health intake assessment shows that the Veteran's girlfriend, who had known the Veteran for many years, stated that he had had mood swings dating back to his return from the military in the early 1970s. In a November 2004 letter, the Veteran's mother indicated that the Veteran did not have any problems until after he entered the military. In another November 2004 letter, the Veteran's girlfriend indicated that she was friends with the Veteran's ex-wife. The ex-wife reported that the Veteran had changed when he came home after serving in Thailand. The Veteran's witnesses are competent to report that he had symptoms ever since military service. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Since the evidence raises the possibility that the Veteran incurred a psychiatric disorder other than PTSD, to include bipolar disorder, during active duty, the Board finds that a remand is necessary in order for the RO to obtain a VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). In addition, the law requires that VA assist a claimant by providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. With respect to the Veteran's claim for service connection for PTSD, a December 2003 VA outpatient treatment report provides a pertinent diagnosis of PTSD. The Veteran stated on his October 2007 VA Form 9 that he saw an Airman Irvine (or Ervine), whom he supervised, in the hospital after the Airman had been seriously injured in a motorcycle accident. The Airman died about one week later from pneumonia. The Veteran stated that he thought this occurred in 1972, during warm weather, possibly in June. The Veteran said that at this time he was assigned to the 367th Military Airlift Command (MAC) at Charleston Air Force Base in Charleston, South Carolina. VA treatment records also reflect that the Veteran dated this incident to 1972. However, VA asked the Joint Services Records Research Center (JSRRC) to search for records dated in 1971, and 1973-1974. Thus, the JSRRC should be asked to conduct a search of records dated in 1972. In November 2004 and December 2005 statements, the Veteran indicated that while serving as a security policeman on an airbase in Thailand there were several alerts. Once, he and some other servicemen were given M16s and sent out into the woods on the back of a deuce-and-a-half truck. He was scared to stay in the woods for half the night and never got over it. Another time, which he initially did not know was an exercise, he participated in an action where he was given an M16, a flack vest, a helmet and some full M16 clips and taken out into the woods. The Veteran said that at this time he was assigned to the 635th Combat Support Group Military Airlift Command (MAC) at the USAF Base at Utapao, Thailand. The Board finds that these stressors raise an argument that he had fear of hostile military activity. Effective July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. If the 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, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Ascertaining whether the Veteran currently has PTSD which is related to his active military service, to include as a result of the stressors related to his fear of hostile military activity, is best resolved by obtaining a competent medical opinion. 38 C.F.R. § 3.159(c)(4). Again, the law requires that VA assist a claimant by providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Request that JSRRC verify whether or not the Veteran, in or around June 1972, while assigned to 367th MAC at Charleston Air Force Base, supervised an Airman Irvine (or Ervine) who died due to pneumonia after a motorcycle accident. 2. After making any additional use of the JSRRC, make a specific determination as to whether the Veteran experienced fear of hostile military activity while on active duty, within the purview of the July 2010 amendment to the regulation governing PTSD claims. 3. After completion of the foregoing, schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any psychiatric disability, to include bipolar disorder and/or PTSD that may be present. The claims file must be made available to the examiner. The AMC must specify for the examiner whether the Veteran experienced fear of hostile military activity while on active duty, and the stressor or stressors which it has determined are established by the record, if any. The examiner must be instructed that only those events that have been verified (or otherwise accepted by the AMC) may be considered for the purpose of determining whether the Veteran was exposed to a stressor in service. Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine: (1) whether it is at least as likely as not (50 percent or more likelihood) that any psychiatric disability other than PTSD, to include any bipolar disorder, that may be present is related to the Veteran's active duty; and (2) whether it is at least as likely as not (50 percent or more likelihood) that any PTSD that may be present is related to the Veteran's active duty stressors, as verified by the AMC. The examiner is requested to provide a rationale for any opinion expressed. 4. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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 MARTIN 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).