Citation Nr: 1334671 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-31 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: David Russotto, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1997. This matter comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue remaining on appeal has previously been before the Board. The appeal was denied by Board decision in June 2012. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the appellant and VA in March 2013, the Court vacated the June 2012 Board decision by Order dated in April 2013. The Board notes that the Board's June 2012 decision addressed two additional issues other than the PTSD issues remaining on appeal. As explained in the March 2013 JMR: "Appellant does not contest that portion of the Board's decision that denied increased ratings for chronic tear with muscle herniation, left rectus femoris and left plantar fasciitis and those issues should be deemed abandoned." In December 2008, a hearing was held before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Since the time of the June 2012 Board decision, the Veteran has changed his representative. His updated VA Form 21-22a (Appointment of an Individual as Claimant's Representative) is of record. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The JMR and Court Order in this case identify a need for additional scrutiny and analysis of the question of whether some of the Veteran's alleged PTSD stressors are the type contemplated by 38 C.F.R. § 3.304(f)(3). There was an amendment to 38 C.F.R. § 3.304(f) effective from July 13, 2010. See 75 Fed. Reg. 39843 (July 13, 2010). This amendment eliminated the requirement for corroboration that the claimed in-service stressor occurred if a stressor claimed by the 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 had contracted, confirms that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. The Board observes that the vacated June 2012 denial of the appeal of entitlement to service connection for PTSD was based, in part, upon findings drawn from an August 2010 VA examination report indicating that the Veteran did not have a diagnosis of PTSD and a finding that no other indication of a diagnosis of PTSD in this case was associated with any in-service stressor event verified to have occurred. In this case, the JMR directs attention to "alleged stressors of scud missile attacks ... and a recovery mission where 'there were mines along the main supply route [and] we did not know where the mines were located.'" The Board must determine whether some of the Veteran's alleged PTSD stressors are the type contemplated by 38 C.F.R. § 3.304(f)(3). That is, the Board must determine whether certain stressors alleged by the Veteran may be considered established to have occurred by the Veteran's uncorroborated lay testimony. By its own terms, 38 C.F.R. § 3.304(f)(3) applies only if certain criteria are met: one of these criteria is that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA had contracted, confirms that the Veteran's symptoms are related to the claimed stressor. Significantly, in this case the August 2010 VA examination report shows that the VA examiner specifically found that the Veteran did not meet the DSM-IV criteria for a PTSD diagnosis at that time, and also specifically found that "the Veteran did not relate a fear of hostile military or terrorist activity...." The Board's vacated June 2012 denial of this appeal referenced these facts, and found that the Veteran's accounts of record concerning stressor events were inconsistent and lacking in credibility. In order to ensure compliance with the terms of the JMR, and considering other pertinent factors in this case, the Board finds that a remand for a new VA psychiatric examination report to further address key questions in this case is the most reasonable step at this time. In this regard, the Board notes that the Veteran's service records do document that the Veteran served as a Motor Transport Operator in the Southwest Theater of Operations during the Persian Gulf War from September 1990 to April 1991. The Board additionally observes that the August 2010 VA examination report suggests that the VA examiner found the Veteran's presentation at that time to be unusual and confusing such that "[i]t is difficult to determine the reason for his presentation at the time of evaluation, but it makes any other diagnosis difficult to make." For the purpose of affording the Veteran with every consideration in this appeal, and to ensure compliance with the directives of the JMR, the Board find that it is most reasonable to afford the Veteran a new VA psychiatric examination presenting a new opportunity for a competent expert to (1) assess whether the Veteran's prior PTSD diagnosis can be confirmed in compliance with the DSM-IV, and (2) determine whether any DSM-IV diagnosis of PTSD is linked to any stressor featuring fear of hostile military or terrorist activity. Accordingly, the case is REMANDED for the following action: 1. The RO should update the set of the Veteran's pertinent VA treatment records in the claims-file from the time of the last such update to the present time. 2. After the RO has determined that the record is complete, the Veteran should be afforded a VA psychiatric examination by a VA psychologist or psychiatrist, or a psychiatrist or psychologist with whom VA had contracted, to determine the nature and etiology of his claimed PTSD (or other psychiatric diagnoses found). All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the examiner for review. 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 event. The VA examiner should specifically determine whether the Veteran has a claimed stressor that 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 any acquired psychiatric disability other than PTSD is diagnosed, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that the psychiatric condition had its onset in service, within one year of discharge from service, or is otherwise causally related to the Veteran's service. In answering the above, the VA examiner should be sure to address all pertinent evidence in the claims-file, including the prior August 2010 VA psychiatric examination report. The rationale should be provided for all opinions expressed. 3. To avoid further remand, the RO should review the examination report obtained and ensure that the requested findings and opinions have been reported. 4. After completion of the above, the RO should review the expanded record (including all pertinent evidence added to the record since the prior RO-level adjudication of this issue), and readjudicate the issue on appeal. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be remanded to the Board for appellate review. 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. 2013). _________________________________________________ ALAN S. PEEVY 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) (2013).