Citation Nr: 1336012 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-43 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1968 to October 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claim of entitlement to service connection for PTSD. In February 2012, the Veteran presented testimony in a travel board hearing before the undersigned. A copy of the transcript has been associated with the claims folder. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims, specifically to include those for PTSD. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...." Id. In essence, the Court found that a Veteran does not file a claim to receive benefits for a particular psychiatric diagnosis, such as PTSD, that is named on a claims form, but instead makes a general claim for compensation for the affliction posed by the Veteran's mental condition. The Board will analyze the Veteran's current claim under this framework and has recharacterized the issue accordingly as noted on the first page of this decision. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends that he has an acquired psychiatric disability, specifically PTSD, related to service in Vietnam and Korea. Applicable regulations provide that 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). During the pendency of this appeal, a new version of 38 C.F.R. § 3.304 was promulgated. See 75 Fed. Reg. 39843 (July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010. Because the Veteran's PTSD claim was appealed to the Board before July 13, 2010, and is being decided thereafter, the updated version of the law is applicable. When the Board addresses questions or issues that the RO did not previously consider, "the Board must secure a waiver from a claimant or otherwise determine that there would be no prejudice to the claimant by proceeding to adjudicate the question or issue." See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Similarly, where the Board considers law not previously considered by the RO, the Board is required to notify the claimant and indicate that consideration of this law may result in a decision adverse to the claimant. See 38 C.F.R. § 20.903(b) (2013) (requiring Board to "notify the appellant and his or her representative" of its intent to consider a law not considered by RO, where consideration "could result in denial of the appeal"). McBurney v. Shinseki, 23 Vet. App. 136, 138 (2009). In this case, the Veteran has not been advised of the new version of 38 C.F.R. § 3.304(f). On remand, he should be so notified. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran has asserted several in-service stressors. He cited to being in Vietnam and receiving mortar attacks. Additionally, he indicated that in the summer of 1971 while in a convoy his vehicle hit a mine, and to another incident in which he was shot at. There is no indication that there has been any attempt to verify his stressors. On remand, the RO must attempt to verify the Veteran's claimed stressors with any necessary assistance from the Veteran. The Veteran was afforded an examination in June 2008. In noting that the Veteran met the criteria for PTSD, the examiner indicated that the Veteran's "experience from Vietnam per se does not seem to be causing him great emotional stress. Rather, concern about his anger and rage and the negative impact of how that might get expressed does seem to concern him." The Board finds that this opinion is insufficient as to the etiology of the Veteran's PTSD. Furthermore, the examiner offered no rationale for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and therefore a medical opinion is not entitled to any weight if it contains only data and conclusions). Therefore, on remand, the Veteran must be provided another examination to determine the nature and etiology of any currently diagnosed psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran of the recent changes to 38 C.F.R. § 3.304(f). See 75 Fed. Reg. 39843 (July 13, 2010). 2. With any necessary assistance from the Veteran with regard to specific dates/details, attempt to verify the Veteran's claimed stressors with the U.S. Army and Joint Services Records Research Center (JSRRC) or other appropriate agency. JSRRC should be requested to conduct a search of all of the available and appropriate sources, and provide any pertinent information which might corroborate any of the claimed stressors. Any information obtained should be associated with the claims file. If the search efforts produce negative results, the claims file should be so documented. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his acquired psychiatric disorder(s). The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must: a) Identify any current acquired psychiatric disorder. b) For each acquired psychiatric disorder identified, provide an opinion, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran's period of military service, to include service in Vietnam. c) Determine if any of the Veteran's claimed stressors is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to any of the claimed stressors, including fear of hostile military activity. d) If a diagnosis of PTSD is not identified, the examiner should reconcile his or her findings with the medical evidence of record documenting diagnoses of PTSD. The examiner should indicate in his/her report that the claims file was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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 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). _________________________________________________ A. C. MACKENZIE Acting 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).