Citation Nr: 18153136 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-34 874 DATE: November 27, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression, is remanded. REASONS FOR REMAND The Veteran served from June 2001 to June 2005 in the United States Army. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in New Orleans, Louisiana. A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's appeal of service connection for PTSD. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans. See 75 Fed. Reg. 39,843 -39, 852 (effective July 13, 2010). Previously, VA was required to undertake extensive development to determine whether a non-combat Veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998). Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. The amended version of 38 C.F.R. § 3.304(f)(3) eliminated the need for stressor corroboration in circumstances in which the service member's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states that, 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 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) (2017). In this case, the Veteran did not engage in combat with the enemy, nor does she so contend. The Veteran’s alleged in-service stressors have not been corroborated; however, the Veteran has presented statements concerning the in-service stressors, which she described as her being afraid in Iraq due to frequent mortar attacks. See 2013 VA Treatment Record. These alleged experiences, considered together, appear to meet the new criteria that the Veteran must have 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 small arms fire, and these events caused the Veteran to be in a state of fear, helplessness, or horror. See 38 C.F.R. § 3.304(f)(3). Accordingly, in light of the amendment to VA regulations discussed above, another remand is necessary to afford the Veteran a VA examination with a VA psychiatrist or psychologist or a psychiatrist or psychologist with whom VA has contracted. Further, while the Board acknowledges the Veteran's contention that she was diagnosed with PTSD, the private psychologist’s opinion is not sufficient to establish such a diagnosis because, as noted, such a diagnosis must be made by an enumerated VA-affiliated clinician. The July 2013 VA treatment record purporting to advance a negative PTSD diagnosis does not indicate that the diagnosis was rendered in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 38 C.F.R. § 4.125. In this case, it is at least unclear whether the Veteran has a current diagnosis of PTSD for VA compensation purposes under the DSM-5. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a psychiatrist or psychologist. The electronic file should be made available to, and be reviewed by, the VA examiner. All indicated tests or studies should be performed. Following a review of the record, the VA examiner is asked to render opinions as whether it is at least as likely as not (a 50 percent probability or greater) that: a) the Veteran experienced, witnessed, or was confronted by 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, and the Veteran's response to that event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror; and b) the claimed stressor is adequate to support a diagnosis of PTSD; and c) the Veteran's PTSD symptoms are related to the claimed stressor d) If the Veteran does not have PTSD in accordance with DSM-5, the examiner should so state, to include providing the psychiatric diagnosis or diagnoses the examiner believes the Veteran has, assuming there is a psychiatric disorder. e) If the Veteran does not meet the criteria for PTSD, the examiner is asked to state whether it is at least as likely as not (a 50 percent probability or greater) that the psychiatric diagnosis or diagnoses is/are related to service. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. For each opinion rendered, the examiner is asked to provide a rationale that addresses the particulars of the Veteran's medical history and the relevant medical science or principles, as applicable to this claim. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. H. Vasil, Associate Counsel