Citation Nr: 1638529 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 13-28 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression (but not alcohol use disorder). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1968 to May 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Milwaukee, Wisconsin Department of Veteran Affairs (VA) Regional Office (RO). In June 2016, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The Board notes that the September 2013 statement of the case (SOC) indicates the appeal is from a later May 2011 rating decision. However, a close review of the record shows the Veteran was first denied service connection for PTSD in January 2010, and subsequently filed a September 2010 correspondence seeking to "reopen" that claim. As that correspondence was within a year of the January 2010 rating decision, and obviously indicates disagreement with that decision, it is liberally construed as a notice of disagreement (NOD) initiating an appeal. Thus, the January 2010 rating decision is the rating decision currently on appeal. Notably, that decision also denied service connection for alcohol use disorder, claimed as secondary to PTSD, but as the Veteran did not indicate disagreement with that appeal within the one-year appellate period, it is not presently on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the record shows that the Veteran has only been afforded one examination in conjunction with his claim. The October 2010 VA examiner opined that the Veteran did not meet the diagnostic criteria for PTSD, summarily rejecting his reports of constant fear during service based primarily on the fact that he finished out his duties in service without difficulty. However, to posit that fear of hostile military or terrorist activity and successful completion of one's duties are somehow mutually exclusive is patently incongruous. In fact, that is precisely the reaction one might hope a soldier would adopt in service of his country. Furthermore, the examiner's dismissal of fear during service is also at odds with the Veteran's service personnel records, which includes a combat history specifically mentioning "participation in operations against insurgent communist forces" (the Vietcong). The September 2013 SOC concedes such history, which is certainly consistent with fear of hostile military or terrorist activity. Notably, 38 C.F.R. § 3.304(f)(3) creates a relaxed evidentiary standard for establishing service connection for PTSD when related to fear of hostile military or terrorist activity. In addition, the Board notes that the Veteran's primary mental health care providers diagnosed him with PTSD as early as 2008, and he has regularly attended PTSD group therapy over the years, with consistent notations of PTSD symptoms throughout. PTSD has been noted as a formal diagnosis as recently as February 2015. The October 2010 examiner did not consider or discuss these facts in finding the Veteran did not meet the criteria for PTSD, leaving it unclear whether a thorough review of the record was completed. Moreover, almost six years of significant psychiatric treatment has occurred since then that no examiner has had the opportunity to consider. This is particularly significant because VA has also since adopted the DSM-5, which applies to this case (as opposed to the now outdated DSM-IV that was in effect at the time of the October 2010 examination), which amended the criteria for PTSD. Finally, the Board notes that the record shows the Veteran has also been diagnosed with depression throughout the years. However, despite the concession of the Veteran's combat history, which the Board finds consistent with a history of fear of hostile military or terrorist activity, there has been no development to determine whether or not his depression could also be related to such fear. In light of the above, the Board finds that a new examination to provide diagnostic clarification is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated record of VA psychiatric evaluations or treatment the Veteran has received. 2. Then, arrange for the Veteran to be examined by a licensed psychiatrist or psychologist to determine the nature and likely etiology of his acquired psychiatric disability. Based on a review of the entire record and examination of the Veteran, the examiner should provide responses to the following: a. Please identify, by medical diagnosis, all psychiatric disability entities found (other than alcohol or substance use disorder) under the DSM-5. Specifically, does the Veteran meet the diagnostic criteria for PTSD? The examiner should note that the Veteran served in circumstances consistent with fear of hostile military or terrorist activity, and specifically consider whether he has PTSD related to such fear. b. For all psychiatric disabilities diagnosed other than PTSD (to specifically include depression), the examiner should indicate whether it is at least as likely as not (a 50 percent or better probability) that such disability is related to his military service, or stressors therein, to include fear of hostile military or terrorist activity. 3. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. 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 2014). _________________________________________________ VICTORIA MOSHIASHWILI 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) (2015).