Citation Nr: 1538288 Decision Date: 09/08/15 Archive Date: 09/18/15 DOCKET NO. 12-11 511A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to May 1972, from June 1990 to September 1990, and from December 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was previously remanded by the Board in April 2014. In June 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he has an acquired psychiatric disorder, specifically PTSD, as a result of active duty service. The Veteran underwent VA examination in connection with his claim in February 2011 and October 2012. Both VA examiners found that the Veteran did not meet the diagnostic criteria for PTSD or any other acquired psychiatric disorder. Upon review, the Board finds the examinations inadequate for purposes of determining service connection. Both VA examiners at least partially based their opinions on a supposed lack of proof or corroboration of the Veteran's claimed in-service combat stressors. However, the Veteran's stressors, which are related to a fear of hostile military or terrorist activity, have been conceded by VA. As such, remand is warranted for a new VA examination and opinion which assumes the veracity of the Veteran's reported stressors. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). With respect to the examination, the Board notes that, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM, Fourth Edition (DSM-IV) and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in December 2013 and, therefore, this claim is governed by DSM-IV. Therefore, while the Board acknowledges that the DSM-5 represents the most up-to-date clinical diagnostic guidelines, due process requires that the Veteran's claim of service connection for an acquired psychiatric condition must also be considered using the DSM-IV criteria. Additionally, as the Veteran receives continuous treatment through VA, the Board finds the RO must obtain and associate with the record all VA medical records dated from May 2015 to the present. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record VA treatment records for the Veteran dated from May 2015 to the present. All actions to obtain the requested records should be documented fully in the claims file. If any records cannot be located or no such records exist, the Veteran and his representative should be so notified, and the unavailability of the records should be noted in the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current nature and etiology of any acquired psychiatric disorder, to include PTSD, depression, and anxiety. The Veteran's claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished. After a review of the evidence, to include the Veteran's service treatment records, VA treatment records, and with consideration of the Veteran's lay statements, the examiner should provide all diagnoses and an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current acquired psychiatric disorder began in service, was caused by service, or is otherwise related to service. In this respect, the examiner should comment on all diagnoses of record during the pendency of the appeal, including any psychiatric diagnosis present or noted in the claims file. For purposes of the examination, the VA examiner must assume the veracity of the Veteran's conceded combat stressors. If PTSD is diagnosed, the examiner must indicate the specific stressor or stressors that led to the PTSD. In formulating the opinion, the term "at least 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 the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. 3. After all development has been completed, re-adjudicate the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety. If the benefit sought on appeal is not granted to the fullest extent, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. 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 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 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).