Citation Nr: 1330963 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-12 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). 3. Entitlement to special monthly pension based on the need for regular aid and attendance or by reason of being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to February 1968. This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2010 rating decision, the RO denied the claim of service connection for adjustment disorder with depression, nightmares, and sleep disturbance. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Since there are additional psychiatric diagnoses, that is other than adjustment disorder, the issue of service connection for PTSD has been recharacterized as indicated on the title page. Id. 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 asserts that he has PTSD due to stressful events that he was subjected to during his military service, including the threat of engaging in arms fire and being survielled by hostile forces while performing his duties testing and repairing missiles while in Germany. He states that his service unit was nuclear capable. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., meaning in accordance with the DSM-IV criteria]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). If the evidence establishes 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)(2). If, however, VA determines either that the Veteran did not engage in combat with the enemy or that he or she did engage in combat, but that the alleged stressor is not combat related, then his or her lay testimony, in and of itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence corroborating his or her testimony or statements. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). See also Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Effective July 13, 2010, however, the regulations governing service connection for PTSD were amended to also relax the adjudicative evidentiary requirements for determining what happened in service where the Veteran's claimed stressor is related to "fear of hostile military or terrorist activity." Specifically, the new 38 C.F.R. § 3.304(f)(3) provides that, 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: 1) adequate to support a diagnosis of PTSD, and 2) that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that 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. This regulatory amendment provides that "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 his response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Here, the Veteran's DD-214 shows that his last military assignment with the Army was Battery B, 5th Battalion, 73rd artillery, and his military occupational specialty was as a missile crewman. Other service personnel records (SPR's) confirm that the Veteran had a nuclear duty position. Service medical records show that the Veteran received treatment for adjustment disorder. The postservice medical evidence reveals an April 2007 diagnosis of adjustment disorder with depression, a claim later denied by the RO in March 2010 for purposes of service connection. However, VA records also report a diagnosis of depression in September 2007, and major depression in June 2009. As a result of these other psychiatric diagnoses, additional consideration is necessary under Clemmons. Further, the medical evidence shows an October 2007 provisional diagnosis of PTSD. In June 2009, PTSD was reported although without any related stressors. As has been pointed out by the RO there is no indication from the Veteran's service personnel records that he engaged in combat during his military service. It appears from the facts though that the Veteran has related service stressors that can be construed as being under a hostile military or terrorist activity pursuant to the new 38 C.F.R. § 3.304(f)(3). As a result, a VA compensation examination for a medical nexus opinion concerning whether his PTSD diagnosis is a result of this specific stressor in service, this must be done before deciding this claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). This examination should also include a full mental status evaluation, considering not only PTSD but also the Veteran's other possible conditions such as depression and their relationship, if any to the Veteran's military service. The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The Veteran also asserts that he is entitled to special monthly pension benefits based upon the need for the regular aid and attendance of another person or on account of being housebound. Generally, aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). In Roberts v. Derwinski, 2 Vet. App. 387 (1992), the Court held that each disability in a pension case must be assigned a percentage rating and that the RO should discuss the diagnostic codes used in denying a claim. The Veteran has numerous non-service connected disabilities. However, the record is absent for any current comprehensive assessment of the Veteran's incapacities due to his physical disabilities, and their effect on his ability to care for himself regarding his need for regular aid and attendance. As a result, the Board determines that further VA medical examination of the Veteran should be accomplished to discern his physical incapacities for purposes of determining a factual need for regular aid and attendance or being housebound. See 38 U.S.C.A. § 5103A(d) (West 2002); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).) Specific findings should include whether the Veteran is able to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; whether he is unable to attend to the wants of nature; whether he suffers from incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment; and whether he is bedridden, i.e., whether his disabilities, through their inherent character, actually require that he remain in bed. Further clinical information is necessary to adjudicate the Veteran's claim. The issue of entitlement to a TDIU is inextricably intertwined with the service connection for a psychiatric disorder, including PTSD issue and TDIU will be held in abeyance pending the completion of the REMAND. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. Schedule a VA mental status evaluation to ascertain all current mental disorders (e.g., PTSD, depression, etc.) and for a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) any current mental disorder, including but not limited to the PTSD, was incurred in, caused by, or is related to the Veteran's active military service, including the threat of engaging in arms fire and being survielled by hostile forces while performing his duties testing and repairing missiles while in Germany during the 1960's. All testing and evaluation needed to make these determinations of diagnosis and etiology should be performed, and all clinical findings reported in detail. As well, it is absolutely imperative the examiner reviews the claims file, including a complete copy of this remand, for the pertinent medical and other history. If, after consideration of all pertinent facts, additional testing results, or procurable data, the examiner cannot provide this requested opinion without resorting to mere speculation, then this must be expressly indicated but, more importantly, the examiner must explain why this requested opinion is not possible or feasible. Merely saying he or she cannot comment will not suffice. 2. Schedule the Veteran for a VA medical examination to determine whether he meets the requirements for SMP based on the need for regular aid and attendance or by reason of being housebound. The claims file, including a complete copy of this remand, must be made available to the designated examiner for review of the pertinent medical and other history. The examination must take into account all of the Veteran's disabilities. The examination report must contain sufficient information to determine whether it is at least as likely as not the Veteran is in need of regular aid and attendance, that is, whether he is helpless or so nearly helpless as to require the regular aid and attendance of another person. The criteria for establishing the need for aid and attendance include consideration of whether he is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or whether he is a patient in a nursing home because of mental or physical incapacity; or whether he establishes factually a need for aid and attendance under the criteria set forth under 38 C.F.R. § 3.352(a) (inability to dress/undress, or to keep ordinarily clean/presentable; frequent adjustment of special prosthetic/orthopedic appliances requiring the aid of another; inability to feed himself; inability to attend to wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis to protect from hazards/dangers incident to daily environment). An opinion is also needed to determine whether it is at least as likely as not the appellant is housebound, in that he is bedridden or substantially confined to his home or immediate premises by reason of permanent disabilities. The examiner must discuss the rationale for all opinions given. 3. Then readjudicate the claims in light of this and any other additional evidence. If the claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further 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. 2013). _________________________________________________ SARAH B. RICHMOND Acting 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) (2013).