Citation Nr: 18145288 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-24 360 DATE: October 30, 2018 ISSUE Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). REMANDED Entitlement to service connection for an acquired psychiatric disability, claimed as PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1972 to November 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issues of entitlement to service connection for a right knee disability and service connection for diabetes was raised by the Veteran in August 2018 correspondence. These matters have not been addressed by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board is of the opinion that additional development is required before the Veteran’s claim on appeal is decided. Initially, the Board notes that the Veteran filed his service connection claim for PTSD. However, in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court’s decision in Clemons, the Board has re-characterized the PTSD issue on appeal as entitlement to service connection for an acquired psychiatric disability, claimed as PTSD, as VA treatment records show diagnoses to include adjustment disorder with mixed anxiety and depressed mood; major depressive disorder, single episode; mood disorder; and PTSD. This will provide the most potentially favorable review of the Veteran’s claim in keeping with the Court’s holding in Clemons. The Board also notes that the regulations governing PTSD were amended, effective on July 13, 2010. 38 C.F.R. § 3.304 (f)(3); 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminated the requirement for corroborating that the claimed in-service stressor occurred if the claimed stressor 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service. Id. For the 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. Id. The Veteran contends that service connection is warranted for an acquired psychiatric disability as related to service stressors to include being involved in a fire-fight, seeing mortars, and fearing for his life while serving with the Marine Air Base Squadron 15 from February 1974 to June 1974 in Nam Phong, Thailand, as well as due to a physical assault by his sergeant. The Board notes that a May 2012 response from the National Archives showed that the Marine Air Base Squadron 15 served in Japan from January 1, 1974, to June 30, 1974. However, importantly, the Veteran’s military personnel records indicate that he served with the Marine Air Base Squadron 15 starting from June 9, 1973. Moreover, the May 2012 response from the National Archives with attached Marine Air Base Squadron 15 chronology from January 1, 1974, to June 30, 1974, showed that “the early portion of the period was concentrated on rehabilitation program since the retrograde from [Royal Thai Air Force Base] RTAFB Nam Phong, Thailand.” The Veteran’s DD Form 214 shows that he served as an antitank assaultman and had three months and six days of foreign and/or sea service. As such, the Board finds that the pertinent period in question for any foreign and/or sea service with the Marine Air Base Squadron 15 is from 1973 and not 1974. Service personnel records reflect that in September 1973 the Veteran requested a separation by reason of hardship and later requested a humanitarian transfer; within these requests, the Veteran states that he was stationed in Nam Phong, Thailand. Such raises the question of whether there may be outstanding records necessary to determine whether the Veteran had temporary duty in Thailand. A remand is required to allow VA to request these records. With respect to the alleged personal assault stressor, the Board notes that if a claim for PTSD is based on an in-service personal assault, 38 C.F.R. § 3.304 (f)(5) provides that evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. Service personnel records also indicate that the Veteran was absent without leave (AWOL), from July 18, 1973, to July 31, 1973. Such raises the question of whether there is evidence of changed behavior in service. To this point, the Veteran has not been afforded a VA examination to address the etiology of his claimed acquired psychiatric disabilities. The Board finds that the Veteran should be afforded a VA examination regarding the nature and etiology of these claimed conditions. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: 1. Contact the appropriate federal repositories, to include the Defense Finance and Accounting Service and National Personnel Records Center, to request the Veteran's service personnel records from his period of active service from November 1972 to November 1974, including pay stubs and verification of whether the Veteran had a temporary duty assignment to Thailand (specifically, Nam Phong, Thailand, in 1973). If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 2. After the above development is completed, if and only if service in Thailand is verified, make a specific determination as to whether the Veteran was exposed to any hostile military or terrorist activity in service, to specifically include any fire-fight or exposure to mortars while serving with the Marine Air Base Squadron 15 in Nam Phong, Thailand. In making this determination, review the file and prepare a summary including all associated documents. Prepare a specific determination in accordance with the provisions of 38 C.F.R. § 3.304 (f) with respect to whether the Veteran was exposed to stressor(s) in service, and, if so, the nature of the specific stressor(s) established by the record. The report must state which claimed in-service stressor(s) were not verified. In reaching this determination, any credibility questions raised by the record must be addressed. 3. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claim. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 4. After the above development is completed, the Veteran should be afforded a VA PTSD examination by a psychologist or psychiatrist. Access to the Veteran’s electronic claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The RO must specify for the examiner whether the Veteran served in a combat area or was exposed to hostile military or terrorist activity, and the stressor or stressors which it has determined are established by the record, if any. The examiner must be instructed that only those events that have been verified (or otherwise accepted by the RO) may be considered for the purpose of determining whether the Veteran was exposed to a stressor in service. The examiner should address the following: a) Indicated whether the Veteran has a diagnosis of PTSD that conforms to the DSM-V criteria. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain this finding in light of the other previous diagnoses of PTSD of record, to specifically include a July 2018 diagnosis noted in VA treatment records. b) If PTSD is diagnosed, the examiner should specifically determine whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran’s PTSD is related to his military service. If a diagnosis of PTSD is deemed appropriate, the examiner must explain how the diagnostic criteria of the DSM-V are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and the stressor(s). The examiner must state whether the claimed stressor(s) is adequate to support a diagnosis of PTSD. If the examiner determines that the Veteran has PTSD related to the claimed in-service stress of an in-service personal assault, fear of hostile action during active service, the examiner should review the claims file and render an opinion as to whether there is evidence of changed behavior after an alleged assault or any other evidence of record, which would be consistent with the alleged trauma, and offer an opinion as to the clinical significance, if any, or such evidenced changes. c) The examiner should opine whether it is at least as likely as not (a 50 percent or greater possibility) that any acquired psychiatric disability diagnosed during the pendency of this appeal to include adjustment disorder with mixed anxiety and depressed mood; major depressive disorder, single episode; and mood disorder had their onset in service or are otherwise etiologically related to service. The examiner is asked to address the Veteran’s contentions that the stressors associated with serving in Thailand as well as a physical assault by his sergeant caused a current psychiatric disorder. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, provide the Veteran and his representative with a supplemental statement of the case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel