Citation Nr: 1339136 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-27 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic disorder (PTSD) and depression. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from July 1974 to July 1991. He had subsequent service with the United States Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina, wherein the RO, in pertinent part, denied the Veteran's claim for service connection for PTSD. In that same rating action, the RO also denied the Veteran's claim for service connection for depression. Although the Veteran subsequently filed a notice of disagreement (NOD) in December 2010 in which he disagreed with the RO's decision to deny both of his psychiatric claims (PTSD and depression), in the September 2011 statement of the case (SOC), the RO characterized the issue on appeal as only entitlement to service connection for PTSD. However, the Board has reframed the issue of service connection for PTSD as entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in June 2012. A transcript of the hearing is of record and has been reviewed. 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 Establishing service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997). In regard to the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and depression, the Board notes that during the pendency of the appeal, 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 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)). In August 2011, the Veteran underwent a VA psychiatric evaluation. Prior to the examination, he had submitted stressor statements in which he reported his in-service stressors. He stated that while he was in the Persian Gulf from 1990 to 1991, he had to travel down a "road of death" where he saw many dead bodies. He also noted that he saw burning oil wells and Iraq vehicles, and captured POWs. Following the mental status evaluation, the examiner diagnosed the Veteran with alcohol dependence and depressive disorder, not otherwise specified (NOS). He specifically concluded that the Veteran's symptoms did not meet the diagnostic criteria outlined in the DSM-IV for a diagnosis of PTSD. The examiner addressed the Veteran's claimed stressor of seeing dead bodies and stated that the Veteran did not relate such stressor to any fear of hostile military or terrorist activity. In June 2012, the Veteran presented testimony at a videoconference hearing before the undersigned VLJ. At that time, he provided a new stressor. Specifically, he stated that while he was in the Persian Gulf, his unit was hit by rocket fire. The Veteran noted that the incoming rocket fire caused him to fear for his life. The Veteran's service records show that his Military Occupational Specialty (MOS) was as a Light Wheel Vehicle Mechanic and that he served in Saudi Arabia from December 1990 to April 1991. The records also reflect that he had duty in an imminent danger pay area in Southwest Asia during the Persian Gulf War. Thus, the Board accepts the Veteran's alleged stressor of being exposed to incoming rocket fire as true. In addition, the Veteran is competent to report that the incoming rocket fire caused him to be fearful for his life. Thus, in light of this new stressor, the Board finds that a new VA examination, as specified in greater detail below, should be performed. 38 C.F.R. § 3.159. In doing so, the Board finds that the aforementioned new stressor should be considered under the amended version of 3.304(f). As stated above, in the August 2011 VA examination, the Veteran was diagnosed with depressive disorder. However, the examiner did not address the pertinent question of whether the Veteran's depressive disorder was related to his active service. Thus, upon remand, this question must also be addressed. Finally, the Veteran stated that he applied for Social Security Administration (SSA) disability benefits, based in part on depression. He stated that he submitted this claim in 2011, but it was denied. On remand, his complete SSA records should be obtained. Updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, dated since February 2011. 2. Request from SSA complete copies of any disability determination(s) it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision(s). If these records are not available, a negative reply is required. 3. Thereafter, schedule the Veteran for a VA psychiatric examination by a psychologist or a psychiatrist. The claims file and a complete copy of this remand must be made available to and reviewed by the examiner in association with the examination. The VA examination report should indicate that this has been accomplished. Following a review of the relevant medical evidence in the claims file, the medical history, the clinical evaluation, appropriate psychological testing and any other tests that are deemed necessary, the examiner is asked to opine on the following: a. Does the Veteran meet the diagnostic criteria for PTSD under the DSM- IV? b. If a PTSD diagnosis is made, is it at least as likely as not (50 percent or more likelihood) that the Veteran's PTSD began during or is causally linked to any incident of service, to include the Veteran's stressors of seeing dead bodies, seeing burning oil wells and Iraq vehicles, and being exposed to incoming rocket fire which caused him to fear for his life? c. Is it at least as likely as not (50 percent or more likelihood) that any psychiatric disability, other than PTSD, TO SPECIFICALLY INCLUDE THE VETERAN'S DIAGNOSED DEPRESSIVE DISORDER, began during or is causally linked to any incident of service, to include the Veteran's stressors of seeing dead bodies, seeing burning oil wells and Iraq vehicles, and being exposed to incoming rocket fire which caused him to fear for his life? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the 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 to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. The examiner is requested to provide a rationale for any opinion expressed. 4. After completion of the above and any other development deemed necessary, review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The Veteran 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). _________________________________________________ P.M. DILORENZO 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).