Citation Nr: 20021266 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-33 180 DATE: March 25, 2020 REMANDED The claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1999 to September 2003. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2015 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for PTSD. The Veteran timely disagreed with that decision and perfected an appeal to the Board. In April 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the San Diego RO. A transcript of that hearing is of record. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997); 38 C.F.R. §§ 3.304(f), 4.125. Additionally, unless it is determined that a veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the Veteran’s alleged stressor(s) generally must be established by official service records or other credible supporting evidence. Cohen, supra; 38 C.F.R. § 3.304(f). However, if the claimed non-combat stressor is related to the veteran’s “fear of hostile military or terrorist activity” and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. 38 C.F.R. § 3.304(f)(3). In the instant case, there is no evidence that the Veteran has been diagnosed as having PTSD or any other psychiatric disorder. Indeed, during his April 2019 hearing the Veteran stated that he has not sought any mental health treatment. The Veteran did, however, report the existence of psychiatric symptoms, to include sleep difficulty, trouble concentrating, memory loss, and social isolation. Regarding any stressful events experienced in service, the Veteran stated that after the September 11, 2001, terrorist attacks, he became fearful the base where he was stationed would be attacked, noting that he was then stationed at Marine Corps Base Quantico in Quantico, Virginia. The Veteran reported the onset of sleep difficulties to have been in service shortly after the attacks and stated that since service, he has tended to isolate himself. The Board notes that the Veteran has not been afforded a VA examination in connection with his claim of service connection for PTSD. In this regard, the Board notes that a medical opinion or examination is required if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Board finds the Veteran’s lay statements is competent evidence of recurrent psychiatric symptoms, indicative of a current disability. Additionally, there is no question as to the occurrence of the events of September 11, 2001. The Veteran’s service treatment and personnel records also document that the was stationed at Marine Corp Base Quantico. The Board further finds that the Veteran’s lay statements regarding the onset of symptoms in service and continuity of such symptoms since that time is sufficient indication that any psychiatric disorder, if diagnosed, may be related to service. Accordingly, the Board finds that the “low threshold” to trigger VA’s duty to obtain examination of the Veteran and medical opinion has been met. See McLendon, supra. While this matter is on remand, to ensure that all due process requirements are met, and that the record is complete, in addition to obtaining the VA records noted above, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly regarding any private (non-VA) treatment), explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. The matter is hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record, to include any private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran. 3. After all records and/or responses have been associated with the claims file, arrange for the Veteran to undergo a VA mental disorders examination by a psychiatrist or psychologist. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician, and the examination report should reflect consideration of the Veteran’s documented psychiatric history and assertions. All tests and studies (to include psychological testing, if deemed warranted), should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran, and review of all pertinent lay and medical evidence, the examiner should clearly identify all psychiatric disability(ies), currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). With respect to PTSD, the examiner should clearly indicate whether the Veteran meets, or at any time pertinent to the current claim, has met the diagnostic criteria for PTSD. If a diagnosis of PTSD is deemed appropriate, the examiner should (a) clearly identify the stressor(s) underlying the diagnosis, to include discussion of whether the Veteran’s reported fear of additional terrorist attacks to his base, following the events of September 11, 2001, is sufficient to support such a diagnosis; and (b) fully explain how the diagnostic criteria are met, to include comment upon the link, if any, between the stressor and the Veteran’s symptoms. With respect to any diagnosed psychiatric disability(ies) other than PTSD, for each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during active service, or is otherwise medically-related to the Veteran’s active service, to include his reported fears following the events of September 11, 2001. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence of record, as well as all lay assertions, to include the Veteran’s competent assertions as to the nature, onset, and continuity of psychiatric symptoms. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal, considering all evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.