Citation Nr: 1334000 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-20 290 ) 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) and depressive disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from May 1967 to May 1969, including service in Vietnam from October 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for bilateral hearing loss and assigned an initial noncompensable rating; granted service connection for tinnitus and assigned an initial 10 percent rating; and denied service connection for PTSD. The Veteran appealed with respect to the initially assigned ratings for his bilateral hearing loss and tinnitus and the denial of service connection for PTSD. In an April 2011 statement by the Veteran's representative, he indicated that, per a conversation with the Veteran, he wished to withdraw the issues of entitlement to an initial compensable rating for bilateral hearing loss and entitlement to an initial rating in excess of 10 percent for tinnitus. Consequently, such issues were not certified to the Board. Therefore, as such issues have been withdrawn, they are not properly before the Board. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). Additionally, in the April 2011 statement, the Veteran's representative indicated that, per a conversation with the Veteran, he requested a Board hearing before a Veterans Law Judge sitting at the RO. Thereafter, a July 2013 letter informed the Veteran that his requested hearing had been scheduled for August 2013. However, according to the Veterans Appeals Control and Locator System, the Veteran failed to appear for his scheduled hearing. When a Veteran fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704(d) (2012). Under these circumstances, the Board finds that the Veteran has been afforded his opportunity for a hearing and that his request to testify before the Board has been withdrawn. The Board notes that the Veteran had expressly filed a claim of service connection for PTSD. However, the record also contains a diagnosis of depressive disorder not otherwise specified (NOS). In view of this information, it is more appropriate to characterize the claim broadly as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has therefore restyled the claim as indicated on the first 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. 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 With respect to the issue on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claim for service connection for an acquired psychiatric disorder so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection for PTSD specifically 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 claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Section 4.125(a) requires the diagnosis to conform to the fourth edition of the American Psychiatric Associations' Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). During the pendency of the claim, VA amended its regulations governing entitlement to service connection for PTSD, effective July 13, 2010. The new version of 38 CFR § 3.304(f), adds a paragraph to the regulation under 3.304(f)(3), and moves 3.304(f)(3) and (4) to 3.304(f)(4) and (5). The amendment to the regulation relaxes the evidentiary standard required for establishing an in-service stressor to support a diagnosis of PTSD. The amended regulation potentially applies to the Veteran's PTSD claim on appeal. The revised regulation states 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 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. See 75 Fed. Reg. 39843-52 (July 13, 2010) (effective date corrected at 75 Fed. Reg. 41092 (July 15, 2010)); 38 C.F.R. § 3.304(f)(3) (2012). The Board initially finds that a remand is necessary to afford the Veteran a VA examination and opinion so as to determine the nature and etiology of his claimed acquired psychiatric disorder. In this regard, the Veteran contends that he suffers from PTSD and depression as a result of his combat service in Vietnam. The Board notes that the Veteran's military occupational specialty (MOS) was listed as Combat Engineer and that his personnel records indicate that he participated in the Vietnam Counter-Offensive Phase III and the Tet Counter-Offensive. A January 2010 VA examiner, following an examination and a review of the Veteran's claims file, found that the Veteran did not have a mental health diagnosis. The examiner hence provided no etiological opinion. However, an October 2009 private psychological evaluation reflected diagnoses of PTSD and depressive disorder NOS. No etiological opinion was provided by the psychologist. With regard to claims of service connection, the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, although a diagnosis of an acquired psychiatric disorder was not found during the most recent VA examination, the private psychological evaluation dated during the course of the appeal provides a current diagnosis of the claimed disability. Therefore, without a determination that the October 2009 evaluation is inaccurate, there is evidence of a "current" disability during the appeal period in question. Consequently, a new examination is required in order to ascertain the nature and etiology of the Veteran's claimed acquired psychiatric disorder, to include PTSD and depressive disorder. The Board also notes that it is not clear whether the Veteran receives regular treatment from any provider with regard to his claimed acquired psychiatric disorder. Therefore, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his claimed acquired psychiatric disorder since service and to submit any treatment records or statements addressing the etiology of such disorder. Thereafter, any identified records should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his claimed acquired psychiatric disorder since service and to submit any additional statements addressing the etiology of such disorder. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining the records described above, the Veteran should be scheduled for an appropriate VA examination in order to determine the nature and etiology of any identified acquired psychiatric disorder, to include PTSD and depression. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Psychological testing should be conducted with a view toward determining whether the Veteran in fact has PTSD or any acquired psychiatric disorder. The examiner should consider the entire record, including psychological test results, examine the Veteran, and identify all of the Veteran's psychiatric disorders in accordance with DSM-IV. If the examiner determines that the Veteran does not meet the DSM-IV criteria for a diagnosis of any acquired psychiatric disorder, he or she should reconcile such findings with the October 2009 private psychological evaluation. If PTSD is diagnosed, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s) and must specifically address whether the Veteran's identified stressor(s) are related to a fear of hostile military or terrorist activity; whether the identified stressor(s) are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressor(s). If an acquired psychiatric disorder other than PTSD is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has any acquired psychiatric disorder (other than PTSD) that had its onset during, or is otherwise related to, his active military service. The examiner should consider all of the evidence of record, including the Veteran's lay statements and medical records. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. 3. After completing the above actions, to include 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. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).