Citation Nr: 18142519 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-26 763 DATE: October 17, 2018 REMANDED Entitlement to service connection for post-traumatic stress disorder is remanded. REASONS FOR REMAND The Veteran served in the Marine Corps from March 1969 to March 1971. This matter is before the Board of Veteran’s Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for post-traumatic stress disorder is remanded. To establish a service connection for Post-Traumatic Stress Disorder (PTSD), a veteran must establish (1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. The Veteran served in the Republic of Vietnam during the Vietnam Era, and as such may qualify under the relaxed stressor fear of hostile action criteria. To qualify, a Veteran must have experienced, witnessed, or have been confronted with an event or circumstance that involved: (1) actual threatened death or serious injury; or (2) a threat to the physical integrity of the Veteran or others; and (3) 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). The event or circumstance in service must have been perpetrated by either a member of an enemy military or by a terrorist. Hall v. Shinseki, 717 F.3d 1369 (Fed. Cir. 2013). A veteran must, however, have medical evidence establishing a current diagnosis of PTSD, which must conform to the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. It can be presumed that mental health professionals are experts, and know to take into account the relevant DSM when providing a diagnosis of PTSD. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). But, if VA believes the diagnosis is not based on the relevant DSM criteria, VA must return the examination report to the examiner to explain how the diagnosis was substantiated. 38 C.F.R. § 4.125. In the case of Veterans whose stressors are based on the fear of hostile action criteria as noted above, the diagnosis and nexus to service must be made by a VA psychologist or psychiatrist. Here, the Veteran was given a VA examination on August 21, 2013. Following that examination, the Veteran was not given a diagnosis of PTSD. While that would normally mean that the Veteran has not met the first criteria for service connection for PTSD, the VA examination report used the incorrect Diagnostic and Statistics Manual for Mental Disorders when evaluating the Veteran. As a rule, the DSM-IV will apply to claims that were initially certified for appeal to the Board, CAVC, or the Federal Circuit prior to August 4, 2014. All applications for benefits that were certified on or after August 4, 2014 will use the DSM-5. Here, the appeal was officially certified on June 20, 2016. This date is after August 4, 2014; therefore, the Veteran was given an examination using an incorrect diagnostic manual. Due to the incorrect DSM being used to evaluate the Veteran, the Veteran was not given an adequate evaluation. The Veteran must be evaluated for a potential PTSD diagnosis using the DSM-5. The Veterans claim for service connection for PTSD is remanded for an examination using the correct Diagnostic and Statistical Manual for Mental Disorders. The matter is REMANDED for the following action: 1. Obtain any relevant and outstanding VA treatment and/or private treatment records. Associate such with the Veteran’s electronic claims file. 2. Thereafter, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). Ensure that that psychiatric examination uses the DSM-5. The examination must include a review of the Veterans claims file, and should note that this case review took place. After a review of the claims file and an examination of the Veteran, the examiner must respond to the following: (a) Does the Veteran have a current diagnosis of posttraumatic stress disorder? If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and provide a full rationale of the conclusion reached. (b) is the diagnosis of PTSD as least as likely as not related to a verified in-service stressor? That in-service stressor can and should include analysis related to the fear of hostile military or terrorist activity. To qualify as an in-service stressor, the Veteran must have experienced, witnessed, or been confronted with an event or circumstance that involved: (1) actual threatened death or serious injury; or (2) a threat to the physical integrity of the Veteran or others; and (3) the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The examiner is reminded that the term “as likely as not” means that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale for the opinion must be provided. Review of the entire claims file is required. Use of the DSM-5 is required. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on the next page)   3. After completing the requested actions, and any additional notification and/or development deemed warranted the issues should be readjudicated in light of all the evidence of record. If a benefit sought on appeal remains denied, the AOJ should furnish to the Veteran an appropriate supplemental statement of the case (SSOC) and should afford them the appropriate time period for response. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel