Citation Nr: 1648358 Decision Date: 12/29/16 Archive Date: 01/06/17 DOCKET NO. 13-03 734A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to July 1998 in the United States Army. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Pursuant to his request, the Veteran was scheduled for an October 2016 videoconference hearing before the Board; however, he failed to report for that proceeding. Prior to the hearing, the Veteran notified the RO that the hearing notice letter had been sent to the wrong address; however, he did not provide a current address. In any event, it is clear that he had notice of the hearing despite the notice letter being sent to the wrong address. As he has not provided cause for his failure to appear or requested another hearing, the Veteran's hearing request is deemed withdrawn, and the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e) (2015). The Veteran's claim for service connection for PTSD was originally denied in an unappealed February 2008 rating decision, due to lack of information to corroborate an in-service stressor. New and material evidence would ordinarily be required to reopen this claim. 38 U.S.C.A. § 5108 (West 2014). However, in July 2010, VA amended its adjudication regulations regarding claims for service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor. See 75 Fed. Reg. 39,843 (July 13, 2010). The Board notes that, "[w]hen a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation." See Routen v. West, 142 F.3d 1434, 1441, citing Spencer v. Brown, 17 F.3d 368, 373 (Fed. Cir. 1994). Accordingly, the Board will adjudicate the claim on a de novo basis without requiring new and material evidence to reopen. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing systems. Any future consideration of this Veteran's case must take into account the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND Establishing entitlement to service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2015). 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. See 38 U.S.C.A. § 1154 (b) (West 2014); 38 C.F.R. § 3.304 (f)(2) (2015). 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. See 38 C.F.R. § 3.304 (f)(3) (2015). The Veteran contends that he has PTSD as a result of stressful events that occurred during his military service in the Persian Gulf. He has stated that he was involved in fire fights, saw dead bodies and body parts, had to remove body parts from enemy vehicles, and killed enemy soldiers. He has submitted photographs in support of these statements. He also received the Bronze Star Medal for saving six fellow servicemen. The Veteran's reported stressors are consistent with the places, types, and circumstances of his service. See September 2007 and October 2007 Memoranda from the Joint Services Records Research Center (JSRRC) (formerly the Center for Unit Records Research (CURR)). At issue, and dispositive in this case, is whether the Veteran meets the criteria for a diagnosis of PTSD as a result of his military stressors. In October 2005, he was evaluated by Dr. E.S. (initials used to protect privacy), a private psychologist hired by his attorney after his behavior resulted in his involvement in the criminal justice system. Dr. E.S. opined that the Veteran had PTSD as result of childhood abuse and military stressors. There are also some records from the Department of Corrections that indicate that the Veteran had PTSD and other records that do not. A VA examination was conducted in October 2012. The examiner diagnosed the Veteran with pedophilia and a personality disorder not otherwise specified (NOS). The examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner partially based his opinion on a December 2005 evaluation by Dr. D.J. from the Colorado Mental Health Institute at Pueblo (CMHIP); however, a copy of this evaluation is not associated with the Veteran's claims file. Therefore, the Board finds that a remand is necessary so that an attempt can be made to obtain a copy of this report. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for or evaluation of his psychiatric disorder, to include Dr. D.J. from Colorado Mental Health Institute at Pueblo. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. If another VA examination or medical opinion is needed, one should be obtained. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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).