Citation Nr: 1331844 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-10 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to December 1971, to include service in Vietnam from January 1971 to December 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for PTSD. Thus far, the RO has limited its consideration of the Veteran's claim to the matter of his entitlement to service connection for PTSD. However, the evidence shows that he has also been diagnosed with an acquired psychiatric disorder other than PTSD; namely, dysthymic disorder. Under the circumstances, the Board finds that the Veteran's claim should be expanded. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating that a Veteran's claim for service connection for psychiatric symptoms should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope). Accordingly, the issue on appeal has been recharacterized as set forth on the title page. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of an August 2013 brief from the Veteran's representative. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); in certain circumstances, credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125 (2013); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). 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 C.F.R. § 3.304(f)(2) (2013). VA's General Counsel has held in a precedent opinion that "the ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination as to whether evidence establishes that a Veteran engaged in combat with the enemy must be resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99 (Oct. 18, 1999). Under the law in effect when the Veteran's claim was initially adjudicated, when the claimed stressor was not related to combat, the Veteran's lay testimony, by itself, was not enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must have contained service records or other corroborative evidence that substantiated the Veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, in July 2010-while the Veteran's appeal to the Board was pending-the evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was relaxed. The new regulations provide 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 adequate to support a diagnosis of PTSD and that the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010); 38 C.F.R. § 3.304(f)(3). For purposes of the amendments, "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 the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2013). VA is also required to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). A medical examination and/or opinion is deemed "necessary" if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the RO has thus far declined to contact the U.S. Army and Joint Service Records Research Center (JSRRC) for purposes of corroborating the Veteran's claimed in-service stressors, finding the available information insufficient. The Board notes, however, that the Veteran has, in fact, provided some specific information in this regard. In particular, the Veteran has reported that, in April 1971, while assigned to the 589th Signal Company (SPT), attached to the 82nd Airborne, his unit was returning to L.Z. English from Phu Cat Air Base, several minutes behind what he believes to have been a 1st Cavalry Gunship, when they came upon the gunship sitting in the road with heavy damage from taking fire in an ambush. He has stated that AVRN (Army of the Republic of Vietnam) soldiers heard the assault, killed the attackers, and "had their blown apart bodies piled up next to the road where we stopped." The Veteran has also reported that he witnessed a fellow serviceman suffer an amputation of three fingers when the serviceman's hand got caught in a pulley. He has indicated his belief that the incident occurred in September 1971; that he (and, presumably, the injured soldier) was assigned to 589th Signal Company (SPT); and that the injured soldier was an SPC4 with the surname of "Lewis." Under the circumstances, given that the Veteran's unit assignment is known, and the fact that he has narrowed the time frame of the events in question to 30-day periods, the Board finds that the available information pertaining to the alleged stressor should be submitted to the JSRRC for corroboration. With respect to the need for a medical examination and/or opinion, the Board notes that the claims file contains a VA outpatient treatment record, dated in July 2008, reflecting diagnoses of PTSD and dysthymic disorder. The record of that treatment-in addition to containing a description of a specific stressor event reported by the Veteran (involving the ambush of a gunship, as noted above)-also contains statements attributed to the Veteran to the effect that, although he was stationed at base camp, he "had to go out in the field a lot" and was "fired up[on] frequently." In the Board's view, that statement goes to the establishment of a stressor relating to "fear of hostile military or terrorist activity," as set out in current regulations. The statement seems consistent with the circumstances of his service, his military occupational specialty (MOS) of Lineman (36C20), and the description of his duties in his service personnel records ("put up new cables and replaced old ones"). Accordingly, and in light of the Veteran's diagnoses, the Board finds that the requirements for obtaining a VA examination and opinion have satisfied. Because neither has of yet been provided, further development is required. The RO last associated with the Veteran's claims file records of his treatment at the VA Community Based Outpatient Clinic (CBOC) in Pensacola, Florida on August 25, 2008. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). For the reasons stated, this case is REMANDED for the following actions: 1. Ask the JSRRC to attempt to verify the Veteran's report that, in April 1971, while assigned to the 589th Signal Company (SPT), attached to the 82nd Airborne, his unit was returning to L.Z. English from Phu Cat Air Base, several minutes behind what he believes to have been a 1st Cavalry Gunship, when they came upon the gunship sitting in the road with heavy damage from taking fire in an ambush; and that AVRN (Army of the Republic of Vietnam) soldiers heard the assault, killed the attackers, and "had their blown apart bodies piled up next to the road where we stopped." Also ask the JSRRC to attempt to verify the Veteran's report that, in September 1971, he witnessed a fellow serviceman assigned to his unit (an SPC4 with the surname of Lewis) suffer an amputation of three fingers when his hand got caught in a pulley. If any additional information is required of the Veteran to conduct the JSRRC research, he should be asked to provide the additional information. 2. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the VA CBOC in Pensacola, Florida, since August 25, 2008. The evidence obtained, if any, should be associated with the claims file. If additional records are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. After all of the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a mental disorders examination, to be conducted by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. The examiner should review the claims file. All indicated tests, including psychological testing, should be conducted and the results reported. After examining the Veteran and reviewing the claims file, the examiner should indicate whether the Veteran meets the diagnostic criteria for PTSD. If PTSD is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the diagnosis is related to one or more established in-service stressors (to include the Veteran's report that his unit came upon a gunship sitting in the road with heavy damage from taking fire in an ambush, that AVRN (Army of the Republic of Vietnam) soldiers heard the assault, killed the attackers, and "had their blown apart bodies piled up next to the road where we stopped," if verified; his report that he witnessed a fellow serviceman assigned to his unit suffer an amputation of three fingers when his hand got caught in a pulley, if verified; and his reported fear of hostile military activity while stationed in Vietnam-specifically, his report that, although he was stationed at base camp, he had to go out into the field a lot and was "fired up[on] frequently."). If psychiatric disorders other than PTSD are diagnosed, the examiner should provide an opinion, with respect to each such disorder, as to whether it is at least as likely as not that the disorder manifested in service or is otherwise attributable to service. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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). _________________________________________________ A. JAEGER 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 this appeal. 38 C.F.R. § 20.1100(b) (2013).