Citation Nr: 1331496 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 05-20 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service in the United States Air Force from October 1979 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Los Angeles, California. Following the perfection of his appeal, the appellant testified before the Board. Said hearing occurred in April 2009. A transcript of that hearing is in the claims file. In July 2009, the Board denied service connection for PTSD and depression. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2012 Order, the Court granted a Joint Motion for Remand, vacating the Board's decision and remanding for additional proceedings. 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 In the joint motion it was indicated that the Board failed to adequately explain why a VA examination was not conducted, to properly account for 38 C.F.R. Section 3.304(f)(5), and to account for favorable evidence of record. In order to ensure that the appellant's assertions concerning any events that may have occurred while he was on active duty in the US Air Force and since he was released from active duty have been considered by medical personnel, the Board will remand the claim to the AMC so that the appellant may be examined by a mental health care provider. Because the claim is being returned for additional development, copies of any available VA, private, and other federal medical treatment records from January 2009 to the present should be obtained and incorporated in the claims file. This case is being returned to the RO via the AMC, and the appellant will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: 1. The AMC should contact the appellant and inform him that, in conjunction with his PTSD physical assault claim, he may submit alternative forms of evidence-that is, evidence other than service records, to corroborate his account of an in-service assault and harassment, and suggest potential sources for such evidence. The letter should also notify him that evidence of behavioral changes following the alleged in-service assault and harassment may constitute "credible supporting evidence of the stressor" pursuant to 38 C.F.R. § 3.304(f)(3). 2. In a separate letter, the AMC should request that the appellant provide a comprehensive written statement concerning his reported assault and harassment by his sergeant and fellow airmen. He should be informed that without such details an adequate search for verifying information cannot be conducted. 3. Upon receipt of the above answers, the AMC should send those answers, along with the other statements made by the appellant, to the National Personnel Records Center (NPRC), if appropriate, and the US Joint Service Records Retention Center (JSRRC). The AMC should ask each of the units whether they can confirm the presence of the appellant, his duties, and any event he comments about. Any obtained evidence should be included in the claims folder for future review. 4. Following the above, the AMC must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to a stressor or stressors in service, and, if so, the nature of the specific stressor or stressors. 5. The appellant should be contacted by the AMC and the AMC should ask him to complete authorizations for VA to obtain all records of his treatment for a psychiatric disability from January 2009 to the present. After the authorizations have been provided to the AMC, the AMC should attempt to obtain all records and include those records in the claims folder for review. If the appellant fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any records are unavailable, the appellant should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim, and he should be advised to submit any records in his possession. 38 C.F.R. § 3.159 (2013). 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, the AMC should schedule the appellant for a VA psychiatric examination to determine the nature and etiology of his current psychiatric disability, including claimed PTSD and depression. All indicated tests and studies should be conducted. The claims folder must be sent to the examiner for review. The examiner should answer the following questions: a. Does the appellant meet the criteria for a diagnosis of PTSD and/or depression? b. If so, is it at least as likely as not (50 percent or greater probability) that any of the appellant's current psychiatric disabilities had its onset in service, is related to any reported stressors in service, is related to his reported behavioral problems in service, or is otherwise related to a disease or injury in service? c. If the appellant meets the criteria for a diagnosis of PTSD, what are the stressors that support the diagnosis? d. If any reported stressor that supports a diagnosis of PTSD consists of an in-service personal assault, was there evidence of behavior changes in response to the claimed in-service personal assault? The examiner is advised that the appellant is competent to report in-service stressors and psychiatric symptoms, his symptoms and history of both PTSD and depression, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner must provide a rationale for all opinions. If the examiner is unable to provide a requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. 7. The AMC should readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the AMC should issue a Supplemental Statement of the Case (SSOC). Thereafter, the case should be returned to the Board, if in order. 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 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). _________________________________________________ JAMES L. MARCH 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).