Citation Nr: 1332592 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-31 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for PTSD. With respect to the Veteran's service connection claim for PTSD, the Board acknowledges that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Although the records in the file demonstrate a diagnosis of PTSD, major depressive episode has also been diagnosed. Thus, although the Veteran's psychiatric claim was originally adjudicated only with respect to service connection for PTSD, under Clemons it can be broadened to include a claim for service connection for any acquired psychiatric disorder. As such, the Veteran's claim has been recharacterized on the title page of this decision. The Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in September 20111. A transcript of that hearing is of record and associated with the claims folder. 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 on his part. REMAND The Veteran asserts that service connection is warranted for PTSD based upon service incurrence. He maintains that he was in combat in Vietnam and while there, he was fearful of hostile military activity. He related that he still has panic attacks, flashbacks, intrusive thoughts, and smells napalm. He also states that he "dives for cover" when a helicopter flies overhead. He has been diagnosed with PTSD by a private psychiatrist who attributes his PTSD to his service in Vietnam. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). However, during the pendency of this claim, 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 amended 38 C.F.R. § 3.304(f) , by redesignating current paragraph (f)(3) and (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: 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 posttraumatic stress disorder 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. 38 C.F.R. § 3.304(f) as amended 75 Fed. Reg. 39843 (July 13, 2010). The Veteran's stressor of undergoing mortar attacks in 1966 was verified. He was scheduled for a VA psychiatric examination in May 2010. He did not report. He testified that he was never notified of the scheduled VA examination. As such, a new VA psychiatric examined is deemed necessary and he is being given the opportunity to undergo such an examination. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims folder. 2. Following completion of the above, the Veteran should be afforded a VA PTSD/mental disorders examination by a psychiatrist or psychologist to determine the nature and etiology of his claimed acquired psychiatric disorder. All indicated tests and studies are to be performed. In connection with the examination, the claims folder must be made available to the examiner (a VA psychiatrist or psychologist or a psychiatrist or psychologist with whom VA has contracted) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. A complete history should be obtained from the Veteran and recorded. Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to whether the Veteran has PTSD meeting the criteria of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), and, if so, whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is the result of any in-service claimed stressor. In so doing, the VA examiner should determine whether the claimed stressor is related to his fear of hostile military or terrorist activity. Thereafter, the VA examiner should confirm whether the claimed stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor. If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). 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. If an acquired psychiatric disability other than or in addition to PTSD is diagnosed (e.g., anxiety, major depression), the examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the psychiatric disorder had its onset in-service or is otherwise causally related to the Veteran's service or PTSD if such disorder is diagnosed. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 3. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. The Veteran 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). _________________________________________________ BARBARA B. COPELAND 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).