Citation Nr: 0719433 Decision Date: 06/27/07 Archive Date: 07/05/07 DOCKET NO. 03-35 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from January 1982 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Boston, Massachusetts. The issue of entitlement to service connection for a back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran has a diagnosis of PTSD based on a credible stressor that conforms to DSM-IV criteria. CONCLUSION OF LAW PTSD was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) was enacted on November 9, 2000. Since that time, the VCAA has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA and to those claims which were filed before the date of enactment but which were not yet final as of that date. The Board has considered this new legislation but finds that, given the favorable action taken herein, no discussion of the VCAA is required. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, 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, is required. See 38 C.F.R. § 3.304(f) (2006). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.303(d) (2006). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. See 38 C.F.R. § 3.304(f). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressors. 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 contain service records or other statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Although the veteran has not addressed the issue of whether he believed himself to be combat veteran, the Board observes that such issue is not pertinent to this appeal. None of the claimed stressors detailed by the veteran at his May 2005 Board hearing and his October 2002 VA examination are combat- related. Thus, the presumption afforded to combat veterans under 38 C.F.R. § 3.304(f) for combat-related stressors is not applicable. An October 2002 VA examination report indicates that the veteran has a DSM-IV diagnosis of PTSD. This diagnosis was based on a number of stressful events reported by the veteran at his examination. The VA examiner noted that the veteran's traumatic stress exposure was episodic, but at times high, and that although difficult to assess whether he meets DSM stressor criteria, it appears he meets the criteria based on the specific items mentioned at the examination. One such stressful event mentioned at the October 2002 VA examination was the veteran reporting being shot in the hand. Similarly, the veteran testified at his May 2005 Board hearing that he was shot in the right hand by an unknown person while he was on patrol in Jamaica. In addition to his own testimony and lay statements regarding this incident, the Board observes that the record contains two buddy statements. Both of these statements indicate that the veteran was shot in the hand, and one specifically indicates that he was shot in 1984 in Jamaica. The RO continues to deny the veteran's claim on the basis that he does not have a DSM-IV diagnosis of PTSD that is due, in part, to a credible stressor. However, the veteran's accredited representative asserts in the May 2007 Appellant's Brief that the RO has "verified" the veteran's right hand gunshot wound incident by accepting the buddy statements as credible evidence that the injury occurred. In this regard, the representative points out that the RO accepted the buddy statements as sufficient evidence of an in-service injury for the purposes of granting service connection for residuals of a broken right hand. See RO rating decision dated December 6, 2006. According to the representative, these statements must be considered credible for both issues; VA may not choose to ignore them with respect to the issue of whether service connection is warranted for PTSD. Thus, by accepting such statements as credible evidence of an in-service injury/event, the veteran's representative argues that the RO "verified" one of the veteran's claimed stressor upon which his PTSD diagnosis is based. The Board agrees. In granting service connection for residuals of a broken right hand, the RO has already determined that the veteran incurred a right hand gunshot wound during service. The October 2002 diagnosis of PTSD is based, in part, on this reported stressful event. Thus, the competent evidence of record demonstrates that the veteran has PTSD based on a credible in-service stressor. Service connection is therefore granted. ORDER Entitlement to service connection for PTSD is granted. REMAND In its August 2005 remand, the Board requested a VA examination and opinion as to whether any currently diagnosed back disorder was related to the veteran's period of active service. While on remand, the veteran underwent VA examination and the June 2006 VA examination report indicates that the veteran has chronic low back pain secondary to osteoarthritis of the lumbar spine. The examiner noted that no medical opinion was requested. However, the Board observes that its remand instructions clearly indicate that an etiological opinion was requested. In light of the absence of a medical opinion regarding the etiology of the veteran's current back disorder, the Board finds that the remand directives have not been substantially complied with, and a new remand is required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Following completion of the above, schedule a VA spinal examination to ascertain the etiology of the veteran's current back disorder, including osteoarthritis of the lumbar spine. The claims folders, to include a copy of this Remand and any additional evidence secured, must be made available to the examiner. The examiner should indicate that the claims folder was reviewed in conjunction with the examination. All medically indicated testing should be performed. The examiner should indicate whether the veteran has any current back disorder, including osteoarthritis of the lumbar spine, and provide a diagnosis. The examiner should also provide an opinion as to whether it is more likely (greater than a 50 percent probability), less likely (less than a 50 percent probability), or as likely as not (50 percent probability) that any current back disorder is etiologically related to the veteran's active military service. Any opinions expressed by the examiner must be accompanied by a complete rationale. 2. After completion of the above and any other development deemed necessary, review the expanded record and determine if the benefits sought can be granted. Unless the benefits sought are granted, the veteran and his representative, if any, should be furnished a supplemental statement of the case. The veteran and his representative, if any, should then be afforded the opportunity to respond, after which the case should be returned to the Board, if in order, for further appellate review. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs