Citation Nr: 1340035 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-23 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that in relevant part denied the Veteran's claims of service connection for PTSD, anxiety disorder not otherwise specified (NOS) and depression. In accord with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has construed the issue on appeal as entitlement to service connection for an acquired psychiatric disorder however diagnosed. In December 2012, the Board issued a decision denying the current appellate claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By an April 2013 Order, the Court, pursuant to a joint motion for remand (JMR), vacated the Board's December 2012 decision in this case, and remanded for compliance with the instructions of the JMR. For the reasons discussed in greater detail below, the Board finds that further development is necessary in this case. Accordingly, the appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition, service connection for PTSD requires medical evidence diagnosing the condition in accordance with the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence established 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). 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. 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. 38 C.F.R. § 3.304(f)(3). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In the December 2012 decision, the Board found that the Veteran's participation in combat had been conceded by the RO. However, the Board also found that the probative evidence shows he does not have PTSD; and that his acquired psychiatric disorder was not etiologically related to service. The JMR contended, in part, that the Board failed to consider evidence relevant to the Veteran's claim. Specifically, it was contended the Board failed to consider a January 2012 medical evaluation from Dr. E. Taitt, and a May 2012 medical evaluation from Dr. J. Mangold, PhD. HSSPP. Both of these evaluations diagnosed the Veteran with PTSD; the former included combat experiences in Axis IV; the latter opined that the Veteran's psychological disorder is related to service. The Board observes that the aforementioned medical evaluation reports were not considered by VA examiners who evaluated the Veteran regarding this case in May 2009 and March 2011. In view of the foregoing, as well as other contentions in the JMR, the Board concludes that a remand is required in order to accord the Veteran a new VA medical examination to evaluate the nature and etiology of his acquired psychiatric disorder. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his psychiatric disorder since March 2011. After securing any necessary release, the RO should obtain those records not on file. 2. The RO should notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and etiology of his current acquired psychiatric disorder. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner should indicate whether the Veteran satisfies the DSM-IV criteria for a diagnosis of PTSD. Such a determination should reflect consideration of the other evidence of record, to include the January 2012 medical evaluation from Dr. Taitt and the May 2012 medical evaluation from Dr. Mangold. For any acquired psychiatric disorder found to be present, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that it was incurred in service, and with respect to any PTSD diagnosis, whether it is due to his acknowledged combat-related stressors and/or "fear of hostile military or terrorist activity" as defined by VA regulations. A complete rationale for any opinion expressed must be provided. If the examiner is unable to offer an opinion without resort to speculation, it is essential that the examiner provide a rationale for that conclusion, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After completing any additional development deemed necessary, the RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained since the case was last adjudicated below, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant 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 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). _________________________________________________ MICHAEL E. KILCOYNE 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).