Citation Nr: 1037106	
Decision Date: 09/30/10    Archive Date: 10/05/10

DOCKET NO.  08-39 622	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Atlanta, Georgia


THE ISSUE

Entitlement to service connection for posttraumatic stress 
disorder (PTSD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. L. Mollan, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from January 1967 
to September 1969 and in the Navy from August 1970 to November 
1970.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a December 2006 RO decision, which denied a claim 
for service connection for PTSD.

In July 2010, a Travel Board hearing was held before the 
undersigned Veterans Law Judge at the Atlanta, Georgia RO.  A 
transcript of that proceeding has been associated with the claims 
folder.

Additionally, the Board notes that the Veteran submitted a claim 
for entitlement to a pension in April 2006.  It does not appear 
that this claim has ever been adjudicated.  As such, the issue 
of entitlement to a pension has been raised by the record, 
but has not been adjudicated by the Agency of Original 
Jurisdiction (AOJ).  Therefore, the Board does not have 
jurisdiction over it, and it is referred to the AOJ for 
appropriate action.  

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the Veteran if 
further action is required.


REMAND

The Veteran is seeking entitlement to service connection for 
PTSD.  After a thorough review of the Veteran's claims folder, 
the Board has determined that additional development is necessary 
prior to the adjudication of this claim.  

Service connection for PTSD specifically requires medical 
evidence establishing a diagnosis of the disability, credible 
supporting evidence that the claimed in-service stressor actually 
occurred, and a link, established by medical evidence, between 
the current symptomatology and the claimed in-service stressor.  
See 38 C.F.R. § 3.304(f) (2009).  

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 C.F.R. § 
3.304(f)(1) (2009); see also, 38 U.S.C.A. § 1154(b) (West 2002).  
Otherwise, the law requires verification of a claimed stressor.

Where a determination is made that the Veteran did not "engage in 
combat with the enemy," or the claimed stressor is unrelated to 
combat, the Veteran's lay testimony alone will not be enough to 
establish the occurrence of the alleged stressor.  See Moreau v. 
Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. 
App. 163, 166 (1996).  In such cases, the record must include 
service records or other credible evidence that supports and does 
not contradict the Veteran's testimony.  Doran v. Brown, 6 Vet. 
App. 283, 289 (1994).  Moreover, a medical opinion diagnosing 
PTSD does not suffice to verify the occurrence of the claimed in-
service stressors.  See Moreau, 9 Vet. App. at 395-396; Cohen v. 
Brown, 10 Vet. App. 128, 42 (1997).  

Recently, the regulations governing PTSD have been amended, 
effective July 13, 2010.  75 Fed. Reg. 39843-52 (July 13, 2010).  
Specifically, this amendment eliminates the requirement for 
corroborating that the claimed in-service stressor occurred 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, provided that the claimed 
stressor is consistent with the places, types, and circumstances 
of the Veteran's service.  Id.

In this case, the Veteran asserted in a May 2006 statement that 
he saw dead bodies in the streets and monks burning themselves to 
death while serving in Vietnam.  He asserted that he was pursued 
by Viet Cong.  He also related an incident in which the soldier 
in the bed next to him at a hospital in service bled to death.  
The Veteran alleged at the July 2010 hearing that he began 
experiencing nightmares while on active duty in Vietnam.  He 
asserted that, while in Vietnam, he witnessed civilian executions 
by United States soldiers.  He was a passenger in a truck which 
drove over a young girl on a scooter.  He was put on guard duty 
at night and was issued weapons with no ammunition.  The Veteran 
asserted that he went on 2 convoys where gunfire could be heard 
in woods on either side of the road.  Again, he had weapons with 
no ammunition.  The Veteran reported that, during his second 
period of active duty, he had nightmares and anger issues.  He 
claims to have been hospitalized at this time for psychiatric or 
behavioral issues.      

In an undated Memorandum, the Atlanta RO issued a Formal Finding 
of a Lack of Information Required to Corroborate Stressor(s) 
Associated with a Claim for Service Connection for PTSD.  

A review of the Veteran's service treatment records reveals that 
the Veteran was diagnosed with schizophrenic reaction, chronic 
differentiated in a September 1970 service treatment record.  In 
a separate September 1970 service treatment record, the Veteran 
was noted as feeling extreme hostility.   He reported a ticklish 
feeling in the joints of his arms and hands and muscles, along 
with a desire to harm, if not kill, some living being (animal or 
human).  In another September 1970 service treatment record, the 
Veteran complained of anxiety related to a previous feeling upon 
which he attacked his wife.  In an undated service treatment 
record, the Veteran underwent a psychiatric evaluation, at which 
he was noted as fine at some times and almost belligerent at 
others.  It was also noted in September 1970 that the Veteran was 
admitted to a psychiatric hospital.  The Board notes that the 
Veteran was discharged less than 3 months after his entry into 
his second period of active duty service.  

With regard to a current disability, the Board notes that the 
medical evidence of record reflects that the Veteran attends a 
PTSD support group.  Additionally, the Veteran has been diagnosed 
with PTSD.  See VA treatment record, September 2006.  
Specifically, in a May 2004 VA treatment record, the Veteran 
complained of nightmares and night terrors, depression, and the 
tendency to isolate.  The Veteran also reported an incident in 
which he was beaten by inmates at the prison where he was a 
school teacher.  The Veteran claims that he was set up by his 
supervisors.  He reported rare flashbacks from Vietnam.  The 
Veteran related that he was diagnosed with PTSD two years prior 
by a Dr. B., a private psychiatrist, and a Dr. M, a psychologist.  
The Veteran was diagnosed with PTSD from combat and the 
altercation at the prison. 

In light of the relevant evidence of record, the Board has 
considered the aforementioned ammendment eliminating the 
requirement for corroborating that the claimed in-service 
stressor occurred 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, 
provided that the claimed stressor is consistent with the places, 
types, and circumstances of the Veteran's service.  75 Fed. Reg. 
39843-52 (July 13, 2010).

As noted above, the Veteran was diagnosed in a May 2004 VA 
treatment record with PTSD from combat and the altercation at the 
prison.  However, this opinion was rendered by a certified 
physician's assistant, not a VA psychiatrist or psychologist, or 
a psychiatrist or psychologist with whom VA has contracted.

Additionally, the Board notes that claims file also contains 
other psychiatric diagnoses.  Specifically, the Veteran was 
diagnosed with depression in a June 2003 VA treatment record.  In 
a March 2003 VA treatment record, the Veteran related that the 
war on terrorism was bringing back bad memories of Vietnam.  The 
Veteran reported that he was in a non-combat unit in Vietnam and 
carried no weapons, but he did see bad things.  The Veteran's 
diagnoses were noted as including depression, anxiety, and panic.  
In an August 2002 VA treatment record, the Veteran was noted as 
having frequent nightmares regarding the accident he had.  In a 
May 2002 VA treatment record, the Veteran reported that he stays 
depressed because of a knee injury and the fact that he has been 
fired from his job.  In a May 2001 VA treatment record, the 
Veteran was diagnosed with a dysthymic disorder.   

Therefore, as the Veteran has been diagnosed with multiple 
psychiatric disorders, and the diagnoses of PTSD on file were not 
related to service by a psychiatrist or psychologist, the Board 
finds that a VA examination is warranted in this case.  
Therefore, this issue must be remanded in order to schedule the 
Veteran for a VA examination to determine whether he has a 
current diagnosis of PTSD according to the American Psychiatric 
Association's Diagnostic and Statistical Manual for Mental 
Disorders (DSM- IV) criteria and, if so, whether this PTSD was 
caused or aggravated by his active duty service, to specifically 
include his reported in-service stressors.  Colvin v. Derwinski, 
1 Vet. App. 171, 175 (1991) (if the medical evidence of record is 
insufficient, the Board is free to supplement the record by 
seeking an advisory opinion or ordering a medical examination).   

Additionally, the Board notes that VA has an obligation under the 
Veterans Claims Assistance Act of 2000 (VCAA) to assist claimants 
in obtaining evidence, to include relevant records from VA or 
private medical care providers.  38 C.F.R. § 3.159 (2009).  As 
noted above, the Veteran reported in a May 2004 VA treatment 
record that he had received diagnoses of PTSD from a private 
psychiatrist (Dr. B.) and a psychologist (Dr. M.).  Additionally, 
the Veteran reported at the July 2010 hearing that he began 
seeking psychiatric treatment in 1990 from a private physician in 
Macon, Georgia.  The claims file contains no private psychiatric 
treatment records.  As such, an attempt must be made to locate 
any private treatment records relating to the Veteran's claimed 
PTSD or any other psychiatric disability or complaints.  
Additionally, the Veteran asserted at his July 2010 hearing that 
he received psychiatric treatment for his PTSD at a VA facility 
in Pensacola, Florida, in the mid-1900's, as well as treatment 
from a VA facility in Dublin, Georgia, since the late 1990's.  
These records should also be obtained. 

Moreover, the Board notes that, under the VCAA, when VA receives 
a complete or substantially complete application for benefits, it 
is required to notify the claimant and his or her representative, 
if any, of any information and medical or lay evidence that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 
2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 
Vet. App. 183 (2002).  This includes a duty to assist the Veteran 
in obtaining records in the custody of federal government 
agencies.  Id.  See also Tetro v. Gober, 14 Vet. App. 110 (2000). 
The Veteran has submitted a statement in which he indicated that 
he has not worked in over 5 years and currently receives Social 
Security Administration (SSA) disability benefits.  In a May 2006 
statement, the Veteran indicated that he was awarded SSA 
disability benefits for PTSD.  The claims file contains no copies 
of any SSA records.  As such, an attempt should be made to obtain 
any available SSA records that could relate to the Veteran's PTSD 
claim or any other psychiatric disabilities.

Finally, the Board notes that the Veteran asserted in his April 
2006 claim that he was hospitalized for psychiatric treatment at 
the Philadelphia Naval Hospital from June 1970 to November 1970.  
As noted above, a September 1970 service treatment record 
reflects that the Veteran was admitted to a psychiatric hospital.  
The Veteran was discharged from this period of active duty in 
November 1970.  The claims file does not appear to contain 
treatment records from his hospitalization.  As such, attempts 
should be made to locate any treatment records from the 
Philadelphia Naval Hospital relating to the Veteran's psychiatric 
hospitalization beginning in September 1970. 

Accordingly, the case is REMANDED for the following action:

1.	Obtain any and all available treatment 
records from the Philadelphia Naval 
Hospital relating to the Veteran's 
psychiatric hospitalization during the 
year of 1970.

2.	Obtain any and all of the Veteran's 
relevant SSA records.  Specifically, any 
SSA records concerning disability benefits 
awarded for PTSD or a psychiatric 
disability of any kind must be obtained.  

3.	Send to the Veteran a letter requesting 
that he provide sufficient information, 
and if necessary, authorization to enable 
the RO to obtain any additional pertinent 
evidence not currently of record, to 
specifically include any possible records 
relating to his psychiatric treatment or 
his claimed PTSD that have not yet been 
associated with his claims file, such as 
psychiatric treatment records beginning in 
1990 from a private physician in Macon, 
Georgia, and any psychiatric treatment 
records from the aforementioned Dr. B. and 
Dr. M.  The RO should also invite the 
Veteran to submit any pertinent evidence 
in his possession, and explain the type of 
evidence that is his ultimate 
responsibility to submit. Associate any 
records received, including negative 
responses, with the claims file.

4.	Obtain any VA psychiatric treatment 
records that have not yet been associated 
with the claims file, to specifically 
include psychiatric treatment records from 
a VA facility in Pensacola, Florida, 
beginning in the mid-1900's, as well as 
treatment records from a VA facility in 
Dublin, Georgia, or the Carl Vinson VA 
Medical Center (VAMC), from the late 
1990's to the present.

5.	After all relevant records have been 
associated with the claims file, schedule 
the Veteran for an appropriate VA 
psychiatric examination for his claimed 
PTSD with a psychologist or 
psychiatrist. All appropriate tests and 
studies should be performed and all 
clinical findings reported in detail.  The 
claims file should be provided to the 
appropriate psychologist/psychiatrist for 
review, and the psychologist/psychiatrist 
should note that it has been reviewed.  
Additionally, the 
psychologist/psychiatrist should elicit 
from the Veteran a history of his symptoms 
and onset relating to his claimed PTSD.  
After reviewing the file, examining the 
Veteran, and noting his reported history 
of symptoms, the psychologist/psychiatrist 
should render an opinion as to whether the 
Veteran currently has PTSD or a 
psychiatric disability of any kind.  
If so, an opinion should be provided as to 
whether it is at least as likely as not 
that the Veteran's current PTSD or 
psychiatric disability of any kind was 
caused or aggravated by his active duty 
service, to include his reported in-
service stressors.  If the 
psychologist/psychiatrist is unable to 
make any determination, she or he should 
so state and indicate the reasons. 

It would be helpful if the 
psychologist/psychiatrist would use the 
following language, as may be appropriate:  
"more likely than not" (meaning likelihood 
greater than 50%), "at least as likely as 
not" (meaning likelihood of at least 50%), 
or "less likely than not" or "unlikely" 
(meaning that there is a less than 50% 
likelihood).  The term "at least as likely 
as not" does not mean "within the realm of 
medical possibility."  Rather, it means 
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 that conclusion as it is to 
find against it.  The 
psychologist/psychiatrist should provide a 
complete rationale for any opinions 
provided.

6.	Then, readjudicate the claim for service 
connection for PTSD.  In particular, the 
RO should review all the evidence that was 
submitted since the November 2008 
statement of the case (SOC).  In the event 
that the claim is not resolved to the 
satisfaction of the Veteran, he should be 
provided a supplemental statement of the 
case (SSOC), which includes a summary of 
additional evidence submitted, any 
additional applicable laws and 
regulations, and the reasons for the 
decision.  After the Veteran and his 
representative have been given the 
applicable time to submit additional 
argument, the claim should be returned to 
the Board for further review.

The Veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

No further action is required of the Veteran until further 
notice.  However, the Board takes this opportunity to advise the 
Veteran that the conduct of the efforts as directed in this 
remand, as well as any other development deemed necessary, is 
needed for a comprehensive and correct adjudication of his claim.  
His cooperation in VA's efforts to develop his claim, including 
reporting for any scheduled VA examination, is both critical and 
appreciated.  The Veteran is also advised that failure to report 
for any scheduled examination may result in the denial of a 
claim.  See 38 C.F.R. § 3.655 (2009).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or by the 
United States Court of Appeals for Veterans Claims (Court) for 
additional development or other appropriate action must be 
handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 
(West Supp. 2009).



_________________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board is appealable to the Court.  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) 
(2009).



{'dataset': 'bva_opinions'}