Citation Nr: 1331963 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-23 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to December 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision rendered by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for PTSD. In November 2008, the Veteran testified at a personal hearing before a Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. In a February 2009 decision, the Board, in pertinent part, denied the Veteran's claim for service connection for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a January 2010 Order, the Court vacated the Board's February 2009 decision to deny entitlement to service connection for PTSD and remanded the matter to the Board for development consistent with the parties' December 2009 Joint Motion for Remand (Joint Motion). The Board parenthetically notes that in the February 2009 Board decision, entitlement to service connection was denied for five other claimed disorders. The Veteran, however, as noted in the Joint Motion, did not pursue an appeal as to those issues. The Board remanded the claim in July 2010 so that the development ordered as part of the Joint Motion could be undertaken. In October 2011, the Board sought to advise the Veteran by letter that, as the VLJ who conducted the November 2008 hearing was no longer employed by the Board, he was entitled to have another hearing before the Board, if he so desired. The Veteran responded in November 2011, informing the Board of his desire to be afforded a new video conference hearing. In December 2011, the Board remanded this issue once again in order to afford the Veteran a new video conference hearing. The Veteran was scheduled for such a hearing on February 29, 2012. As he failed to report for this hearing, the Board proceeded to adjudicate the claim. In a March 2012 decision, the Board denied the claim for service connection for PTSD. The Veteran appealed to the Court, and in February 2013, the Court remanded the matter for action consistent with the December 2012 JMR. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Effective July 13, 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. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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. For purposes of this paragraph, "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. The provisions of the above amendment apply to applications for service connection for PTSD that (1) are received by VA on or after July 12, 2010; (2) were received by VA before July 12, 2010, but have not been decided by a VA regional office as of July 12, 2010; (3) are appealed to the Board of Veterans' Appeals (Board) on or after July 12, 2010; (4) were appealed to the Board before July 12, 2010, but have not been decided by the Board as of July 12, 2010; or (5) are pending before VA on or after July 12, 2010, because the United States Court of Appeals for Veterans Claims vacated a Board decision on an application and remanded it for readjudication. Thus, the amended regulation applies in this case. The Veteran claims that he has PTSD which is related to service. In this regard, the Board notes that VA outpatient treatment records show a diagnosis of PTSD. The Veteran has alleged that his PTSD is due to stressors experienced while serving in Korea. Specifically, the Veteran has asserted in statements and personal hearing testimony that he believes he has PTSD as a result of events in Korea while participating in missions into the demilitarized zone (DMZ) involving firefights and the killing of infiltrators. The Veteran also appears to be asserting that his PTSD is related to a general fear of coming under attack whenever he was in close proximity to the DMZ. A VA examination has not been conducted regarding this claim. Moreover, the Veteran has reported fear of being attacked, which is consistent with the time, place and circumstances of his service in Korea. Therefore, a VA examination is needed to confirm the diagnosis of PTSD and determine if there is a nexus to service under the new regulations. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a examination by a VA psychiatrist or psychologist to determine whether the Veteran has PTSD due to the stressor of being in fear of hostile action during active service or any other claimed service-related stressor. The claim file should be made available to the examiner for their review and access to the Veteran's Virtual VA file should be provided; the examiner must state that a review of the claim file was conducted. The examiner should review the claim file prior to completing the examination report. Based on the review of the claim file and examination of the Veteran, the examiner should identify (1) whether the Veteran has PTSD under the diagnostic criteria of DSM-IV; and, if so, (2) whether such PTSD is due to any specific claimed stressor, or (3) is at least in part due to fear of hostile action during active service. A complete rationale for all opinions expressed must be provided. 2. The RO should also undertake any other development it determines to be warranted. 3. The RO should then re-adjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. 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 LANE 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).