Citation Nr: 1339245 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 09-42 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The veteran served on active duty from April 1969 to February 1971, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that denied the veteran's claim of entitlement to service connection for PTSD. The veteran's actual and virtual files were reviewed in this case, though the veteran has minimal virtual records. 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 Board notes the Veteran was denied service connection previously because, while VA treatment records showed a diagnosis of PTSD, there was no evidence of a verified in service stressor to relate that diagnosis to. The Board observes that since RO last denied the Veteran's PTSD claim because of the lack of current diagnosis of PTSD that was related to verified in-service stressor events, the regulations pertaining to PTSD were amended. In this regard, 38 C.F.R. §3.304(f)(3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity." Such a location is evidenced by awards such as the Iraq Campaign Medal or the Vietnam Service Medal. In addition, lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. Id. The liberalizing criteria contained in the new § 3.304(f)(3) will be applied to PTSD service-connection claims that are pending as of the effective date of the regulation (July 13, 2010) and to claims filed on or after this effective date. The Veteran has stated that he was afraid while on guard duty in service, and afraid of his base coming under attack. In his substantive appeal, he specifically indicated that he wished for his claim to be considered under these more liberal regulations. Given past statements made in regard to his service, and the regulatory changes concerning service connection for PTSD, the Board is of the opinion that a VA examination would be probative to ascertain whether the Veteran's current PTSD, or any other psychiatric diagnosis is related to service, to include a verified noncombat stressor event, or whether he has PTSD as a result of a fear or hostile or terrorist activity. There is no medical opinion of record as to this issue. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In addition, on remand, any additional relevant VA treatment records that may exist pertaining to the Veteran's treatment for any psychiatric disorder, should be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran informing him of the July 2010 revisions to the regulations pertaining to service connection for PTSD under 38 C.F.R. § 3.304(f). 2. Attempt to obtain any outstanding VA or private pertinent treatment records identified by the Veteran. In particular, attempts should be made to obtain all the Veteran's outstanding VA mental health care treatment records since 2010. 3. Thereafter, schedule the Veteran for an examination by a VA psychiatrist or psychologist to determine the nature and etiology of PTSD or any other acquired psychiatric disorder. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner should review the claims files prior to completing the examination report. Based on the review of the claims files and examination of the Veteran, the examiner should identify: (1) Whether the Veteran currently has PTSD under the diagnostic criteria of DSM-IV; and if so, whether such PTSD is due at least in part to fear of hostile action during active service. (2) Whether the Veteran has any other current diagnosed acquired psychiatric disorders present during the period of this claim, and if so, whether any such diagnosed disorder is at least as likely as not (i.e., at least 50 percent probable) related to service. The VA examiner should consider and discuss the Veteran's reported history and contentions, as well as any other pertinent medical nexus evidence of record. The rationale for all opinions expressed must be provided. If the examiner is unable to provide the requested opinion, he or she must explain why the opinion cannot be provided. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the AMC should adjudicate the claim for service connection for PTSD, in light of all pertinent evidence and legal authority. If any benefits sought on appeal are not granted to the Veteran's satisfaction, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. 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). _________________________________________________ Michael Lane 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).