Citation Nr: 1331458 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-12 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board notes that the Veteran filed an original claim for entitlement to service connection for PTSD in March 1985. In May 1985, the RO requested evidence from the Veteran. No response was received, and it appears the claim was deemed abandoned. 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 contends that he has PTSD due to his military service. Service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), i.e., the diagnosis must conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); (2) medical evidence of a link between current symptomatology and a claimed, in-service stressor; and (3) credible supporting evidence that the claimed, in-service stressor actually occurred. 38 C.F.R. § 3.304(f)(2) (2012). 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 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1). Otherwise, the law requires verification of a claimed stressor. The Veteran served in Vietnam where in July 1969 he sustained injuries from the explosion of a land mine including the loss of three toes. His awards include the Purple Heart Medal and the Bronze Star Medal. There is conflicting evidence in the record as to whether the Veteran has a diagnosis of PTSD. A March 2011 Behavioral Health Intake Evaluation administered by a licensed VA social worker shows that the social worker considered the Veteran's symptoms, including his trouble sleeping, muscle tension, excessive worry, feelings of guilt, irritability, hyper-vigilance, and lack of energy. The Veteran explained he had nightmares about once a month when he would "wake in terror, hearing mortar rounds coming in." The social worker diagnosed "PTSD, mild, chronic." She explained that the Veteran "has experienced traumatic stress from his military trauma." In May 2011, the Veteran was afforded a VA PTSD examination by a clinical psychologist. The psychologist referred to the behavioral health evaluation but did not discuss the social worker's diagnosis of PTSD. The psychologist recognized that combat wounds were sustained and noted, as evidenced in the service records, that following the Veteran's return from Vietnam he reported a series of difficulties with superiors and received several Article 15s before being asked to leave service prior to the end of his second period of service in 1975. The Veteran reported problems with anger and irritability that, at times, led to physical fighting and negatively affected his familial and interpersonal relationships. The psychologist noted that the symptoms were chronic but determined that they did not meet the DSM-IV criteria for a diagnosis of PTSD. Specifically, the psychologist concluded that the Veteran was "experiencing some mild symptomatology, but it is below the diagnostic threshold." As there is conflicting evidence as to whether the Veteran has PTSD, he should be afforded a VA examination by a different examiner than the one who conducted the examination in May 2011 to determine whether he has a diagnosis of PTSD which is due to the stressor experienced in service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA PTSD examination with an examiner other than the psychologist who conducted the May 2011 examination to determine the nature, extent and etiology of any PTSD that he may have. A copy of the claims folder and this REMAND must be made available to the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. In addition, all pertinent psychiatric pathology should be annotated in the examination report. In particular, the examiner should address the following questions: (i) Does the Veteran currently have PTSD? (ii) If PTSD is diagnosed, is it likely, unlikely or at least as likely as not, i.e. 50 percent or greater, that PTSD is the result of the in-service stressor, as opposed to being due to some other factor or factors? In answering these questions, the examiner should consider and address: (a) the March 2011 Behavioral Health Intake Evaluation; (b) the May 2011 VA examination report; (c) the Veteran's Personnel Records. The Board notes that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. Complete rationale should be provided for any opinion expressed. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 2. Thereafter, re-adjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. The Veteran 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).