Citation Nr: 1339109 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-10 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1971. This claim has been previously characterized as an appeal from a rating decision in November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. However, this claim was also denied in a prior rating decision from March 2009 that was not yet final. Moreover, when a veteran submits relevant evidence within a year of a rating decision, as the Veteran did in September 2009, "38 C.F.R. 3.156(b) requires that any subsequent decision based on such evidence relate back to the original claim." Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, contrary to the RO's characterization of the issue, it is actually on appeal from a rating decision in March 2009 by the RO in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge in February 2012. A transcript of the hearing is of record. 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 VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board determines that additional development is required before this claim may be adjudicated. It is the Veteran's contention that he has PTSD due to a number of stressors. Most notably, he stated in February 2009 that he experiences symptoms of PTSD after his service in the Vietnam War, where was a convoy driver delivering JP-4 jet fuel along roadways in the An Khe Pass. The Board recognizes that this was an area in the Republic of Vietnam where Viet Cong activity was observed, and also observed that some of the other roadways where the Veteran operated were areas where hostile activity by enemy forces was a realistic possibility. That the Veteran participated in these convoys was corroborated by statements by two other soldiers with whom he served. The Veteran's claim was denied by the RO most recently in November 2009 on the basis that none of the stressors he mentioned could be corroborated, as is required under 38 C.F.R. § 3.304(f) (2013). However, the provisions relating to the establishment of service connection for PTSD were amended since that time. See 75 Fed. Reg. 39,843-39,852 (Jul. 13, 2010) and 75 Fed. Reg. 41,092 (Jul. 15, 2010) (effectuating a correction to the July 13, 2010 Federal Register). Under this amendment, if a veteran's claimed stressor is related to his or her 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 PTSD related to the claimed stressor, then the veteran's lay testimony may alone be sufficient to establish the occurrence of the claimed in-service stressor, so long as the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3) (2013). "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. Id. Based on the Veteran's statement in February 2009, as well as his testimony before the Board at his hearing in February 2012, the amended regulation appears to be applicable to this case. On remand, the RO should consider entitlement on this basis. Moreover, a VA examination is necessary in order to determine whether a diagnosis of PTSD is warranted based on these statements. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) Finally, although the Veteran's psychiatric disorder claim has largely been one for PTSD, the RO should also consider entitlement to service connection for any psychiatric disorder other than PTSD that may be identified in the evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the case is REMANDED for the following action: 1. Acquire all treatment records from the VA Medical Centers in Alexandria or Lafayette, Louisiana, since March 2009. The AMC should also acquire records from any other VA Medical Center where the Veteran may have received treatment. If the Veteran has received any additional relevant treatment from a private facility, and the records of such treatment are not of record, the AMC should attempt to acquire these records after obtaining the Veteran's authorization. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination in order to determine the nature, extent, onset and etiology of any psychiatric disorder found to be present. All indicated studies should be performed and all findings should be reported in detail. The VA examiner is asked identify any cognitive and/or acquired psychiatric disorder(s) that are present. All indicated tests and studies must be performed, any indicated consultations should be scheduled, and all clinical findings should be reported in detail. The claims file must be made available to the examiner for review in conjunction with the examination, for a proper understanding of the Veteran's medical history. For any cognitive and/or acquired psychiatric disorder diagnosed, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any such diagnosed disorder had its onset in service or within one year of service discharge or is otherwise etiologically related to the Veteran's active service. In the event that the VA examiner concludes that a diagnosis of PTSD is warranted, the examiner should state with specificity the stressor events (to include the fear of hostile activity) upon which this diagnosis is based. If the Veteran is diagnosed with PTSD at his VA examination, the RO should take all necessary steps, if any, to corroborate his reported stressors, to include obtaining any additional information from the Veteran. All findings and conclusions should be set forth in a legible report and any opinions should be accompanied by adequate reasons and bases, such as specific medical data and the conclusions contained in any medical literature. If the examiner is unable to provide any of the above opinions without resorting to speculation or for any other reason, an adequate explanation should be provided as to why such an opinion cannot be provided. Such explanations may include, but are not limited to, limited experience in the specific medical field or the need for additional tests. 3. After completion of the foregoing, readjudicate the claim for entitlement to service connection for an acquired psychiatric disorder. In doing so, the AMC should undertake all additional development it deems necessary. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ 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).