Citation Nr: 1339463 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 11-21 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from August 1992 to August 1996, to include service in Southwest Asia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which denied service connection for PTSD. In December 2011, the Veteran testified at a hearing held before a Decision Review Officer at the RO. In January 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board video-conference hearing. Transcripts of both hearings have been prepared and associated with the claims file. Thus far, the RO has limited its consideration of the Veteran's claim to the matter of his entitlement to service connection for PTSD. However, the evidence shows that he has also been diagnosed with an acquired psychiatric disorder other than PTSD; namely, depression, not otherwise specified (NOS). Under the circumstances, the Board finds that the Veteran's claim should be expanded. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating that a Veteran's claim for service connection for psychiatric symptoms should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope). Accordingly, the issue on appeal has been recharacterized as set forth on the title page. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of the transcript of the Veteran's January 2013 Board hearing. The appeal is REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); in certain circumstances, credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125 (2013); see also Cohen v. Brown, 10 Vet. App. 128, 140 (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. 38 C.F.R. § 3.304(f)(2) (2013). VA's General Counsel has held in a precedent opinion that "the ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination as to whether evidence establishes that a Veteran engaged in combat with the enemy must be resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99 (Oct. 18, 1999). Under the law in effect when the Veteran's claim was initially adjudicated, when the claimed stressor was not related to combat, the Veteran's lay testimony, by itself, was generally not enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). With exceptions not applicable here, the record in such cases must have contained service records or other corroborative evidence that substantiated the Veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, in July 2010-while the Veteran's claim was pending-the evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was relaxed. The new regulations provide 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 PTSD 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. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010); 38 C.F.R. § 3.304(f)(3). For purposes of the amendments, "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. In the present case, the Veteran has described two stressors that he believes may have led to the development of PTSD. The RO has determined that the first stressor-to the effect that the Veteran witnessed civilian executions in Riyadh, Saudi Arabia in 1994, while off duty-cannot be corroborated by the U.S. Army and Joint Service Records Research Center (JSRRC), due to lack of sufficient information concerning the details of the alleged incident(s). However, as to the second claimed stressor-to the effect that the Veteran was afraid of being harmed in a Scud missile attack-the RO conceded that stressor as consistent with the places, types, and circumstances of the Veteran's service. See Supplemental Statement of the Case (SSOC) dated in September 2011. The Board agrees that the Veteran's statements, alone, are sufficient to establish the latter stressor under the terms of the revised regulations. When the Veteran was examined for VA compensation purposes in September 2011, the examiner (a VA psychologist) concluded that the Veteran did not have PTSD. However, in February 2012, another VA care provider (a psychiatrist) reached the opposite conclusion. The February 2012 examiner also concluded that the Veteran had depression, NOS, secondary to PTSD. Notably, the February 2012 examiner's opinion appears to have been based entirely on the Veteran's reported witnessing of civilian executions which, as noted above, has not been corroborated. Neither that examiner, nor the examiner in September 2011, commented on whether the Veteran's other reported stressor (fear of hostile military or terrorist activity, as established by lay testimony) is adequate to support a diagnosis of PTSD. As such, a new examination is required. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Updated records of the Veteran's treatment, to include at the Vet Center in Kailua-Kona, Hawaii, should also be obtained. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2013). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). For the reasons stated, this case is REMANDED for the following actions: 1. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the Vet Center in Kailua-Kona, Hawaii since April 7, 2009. The evidence obtained, if any, should be associated with the claims file. If additional records are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Take action to ensure that all relevant records of the Veteran's treatment at the VA Community Based Outpatient Clinic in Kailua-Kona, Hawaii are associated with the claims file. If additional records are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. After all of the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a mental disorders examination, to be conducted by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. The examiner should review the claims file. All indicated tests, including psychological testing, should be conducted and the results reported. After examining the Veteran and reviewing the claims file, the examiner should indicate whether the Veteran meets the diagnostic criteria for PTSD. If PTSD is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the diagnosis is related to his reported fear of being harmed in a Scud missile attack while stationed in Southwest Asia. If psychiatric disorders other than PTSD are diagnosed, the examiner should provide an opinion, with respect to each such disorder, as to (a) whether it is at least as likely as not that the disorder manifested in service or is otherwise attributable to service, and, if PTSD is diagnosed, (b) whether it is at least as likely as not that psychiatric disorders other than PTSD have been caused, or worsened beyond natural progression, by PTSD. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 or by the U.S. 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). _________________________________________________ A. JAEGER 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 this appeal. 38 C.F.R. § 20.1100(b) (2013).