Citation Nr: 1336648 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-29 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to January 1971, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held in May 2011 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. With respect to the claim for service connection for an acquired psychiatric disorder, the Court has held that, although an appellant's claim identified as PTSD without more, cannot be a claim limited only to that diagnosis, but must be considered a claim for any mental disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that an appellant does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, however described, causes. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed a claim seeking service connection for PTSD specifically, his August 2008 claim also characterized psychiatric problems of memory loss and difficulty with concentration. Moreover, records show treatment for depression and anxiety disorder. Thus, pursuant to Clemons, supra, the Veteran's service connection claim is now characterized as one for an acquired psychiatric disorder, to include PTSD, depression, and anxiety disorder. Clemons, supra. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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. REMAND The Veteran avers that he has PTSD and/or an acquired psychiatric disorder as a direct result of active military service in the Republic of Vietnam. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to the adjudication of these claims. As to claims of entitlement to service connection for PTSD pending before VA on or after October 29, 2008, service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the disability, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2012). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(f)(1) (2012). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) ("DSM IV"). The provisions of 38 C.F.R. § 3.304(f) were recently amended, however, effective July 13, 2010, during the pendency of this appeal. See 75 Fed. Reg. 39843-52 (July 13, 2010). The primary effect of the amendment, which relaxes the evidentiary standard for establishing in-service stressors in PTSD claims, is the elimination of the requirement for corroborating evidence of the claimed in-service stressor if it is related to the veteran's "fear of hostile military or terrorist activity." In place of corroborating the reported stressors, VA will now rely on a veteran's lay testimony alone to establish the occurrence of a stressor related to hostile military or terrorist activity, provided that (1) the claimed stressor is consistent with the places, types and circumstances of service, (2) 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 (3) the veteran's symptoms are related to the claimed stressor. Id. By way of history, VA records show that the Veteran served in the Air Force to include in Vietnam. His form DD 214 reflects that his military occupational specialty was as a security policeman. In various statements of record, to include his testimony in May 2011, the Veteran claims that, on many occasions while serving in Vietnam, enemy forces fired rockets into his base camp, resulting in his being in fear for his life. Moreover, he saw body bags which disturbed him. In this regard, the Board observes that the Veteran's claim of fear of hostile military activity was made during a July 2010 VA outpatient psychiatric evaluation, around the same time as the amended provisions of 38 C.F.R. § 3.304(f) became effective. As related above, the amended regulations resulted in a relaxing of the evidentiary standard for establishing in-service stressors in PTSD claims. It is not clear as to whether the relaxed standard regarding stressors has been applied in this case. At any rate, his assertions as to fear due to hostile activities are afforded greater credibility since amended regulations became effective. Under the VCAA, VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of a veteran when an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). VA will provide a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). Lay evidence of continuity of symptoms may meet the low threshold of indicating that a current disability may be associated with military service. McLendon, 20 Vet. App. at 82-83. In this case, it is noted that the Veteran has not been diagnosed as having PTSD, but records do show reports of depression and a diagnosis of anxiety disorder. At the most recent VA examination in July 2010, the examiner noted that the Veteran did not meet the full criteria for PTSD. Despite the reports and diagnoses, the Board notes that the language of the Federal Register appears to indicate the necessity of a PTSD diagnosis during a VA compensation and pension examination for the relaxed evidentiary standard to apply. See 75 Fed. Reg. 39843 -52, supra. Accordingly, as there is competent evidence of a current disability or persistent or recurrent symptoms of a disability, an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's active military service, and insufficient competent medical evidence to make a decision on the claim, the Board finds that a remand for a VA examination is necessary to determine whether a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, provides the Veteran with a diagnosis of PTSD with symptoms medically-related to his claimed in-service stressor involving fear of hostile military activity. In addition, as the Veteran is also claiming entitlement to service connection for an acquired psychiatric disorder, the Board finds an examination is needed in order to obtain an opinion regarding whether he currently has an acquired psychiatric disorder(s) that was caused or permanently aggravated by military service. In this regard, the Board observes that, during his March 1967 pre-induction examination, no psychiatric disorder was diagnosed, and he was not treated for such during military service. His separation examination in late 1970 was also negative. However, post service records show diagnoses of depression and anxiety disorder, and his psychiatric complaints generally are attributed to his time in service. In light of the foregoing, the Board finds that a VA examination is needed to obtain a medical opinion as to whether any currently-diagnosed psychiatric disorder (other than PTSD) was the result of some incident of service. In addition, the VCAA states that VA has a duty to assist claimants in substantiating their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). This includes the duty to notify the Veteran of all evidence necessary to substantiate his claim. As the Veteran has not been provided with information pertaining to the recently amended regulations for establishing a claim of entitlement to PTSD based on fear of hostile military or terrorist activity, he must be provided with this notice. Finally, the Court has held that, where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Therefore, while this case is in remand status, an attempt should be made to obtain all of the Veteran's mental health records since July 2010. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with a VCAA letter advising him of how to substantiate a claim of entitlement to PTSD based on fear of hostile military or terrorist activity under the revised provisions of 38 C.F.R. § 3.304(f) (2012). The Veteran should be given a reasonable amount of time to reply to such notice. 2. The RO/AMC should obtain all of the Veteran's available VA mental health treatment records since July 2010 and associate them with the claims folder. Any negative reply must also be associated with the claims folder. 3. Thereafter, schedule the Veteran for an examination by an appropriate psychiatrist or psychologist (who has not examined the Veteran before) to determine whether he has PTSD with symptoms that are medically-related to his claimed in-service stressors involving the fear of hostile military or terrorist activity while in Vietnam or as a result of other reported stressors such as exposure to body bags. The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the folder has been reviewed. Any and all tests deemed necessary should be performed. The examiner should also solicit from the Veteran his contentions regarding his claimed in-service stressor involving fear of hostile military or terrorist activity and specifically note that, in addition to the medical evidence, the Veteran's statements have been taken into consideration in formulating his or her opinion. The examiner should also note that the Veteran's service in within the Republic of Vietnam has been confirmed as has his military occupational specialty as a security policeman. The examiner should be asked to respond to the following: (a) Specifically, the examiner should determine whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that PTSD is related to his active military service, including as a result of reported stressors such as fear of hostile military or terrorist activity, as a security policeman specialist in Vietnam? The examiner should be advised that the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale for any opinions expressed, as well as a discussion of the medical principles involved, must be provided. (b) If any other psychiatric disorder(s) (other than PTSD) is diagnosed, the examiner should provide an opinion as to whether such resulted from his military service. Specifically, the examiner should determine whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder is of service onset or otherwise related thereto. A complete rationale for any opinions expressed, as well as a discussion of the medical principles involved, must be provided. If, for any reason, the clinician is unable to offer an opinion without resorting to speculation, it should be so stated. In that case, the examiner must specifically support that conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history, and addresses such matters as whether i) there is inadequate factual information upon which to base an opinion (e.g., the lack of service treatment records); ii) the question falls outside of the limits of current medical knowledge or scientific development; iii) the condition manifested in an unusual way, such that its cause or origin is unknowable; or iv) there are other risk factors for developing the condition. Note: The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AMC/RO should obtain and associated with the claims file a copy or copies of the notice or notices of examination sent to the appellant by the appropriate VA medical facility. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed and readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).