Citation Nr: 0832674 Decision Date: 09/23/08 Archive Date: 09/30/08 DOCKET NO. 00-04 437A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for depression. 3. Entitlement to service connection for memory loss. 4. Entitlement to service connection for a nerves disorder. 5. Entitlement to service connection for stress. 6. Entitlement to service connection for an eating disorder. 7. Entitlement to service connection for sleeplessness. 8. Entitlement to service connection for violent behavior. 9. Entitlement to service connection for back pain. 10. Entitlement to service connection for hip pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran had active military service from November 1989 to March 1990, and from September 1990 to May 1991, including service in the Southwest Asia Theater of Operations in support of Operation Desert Shield/Storm from November 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for PTSD, depression, memory loss, nerves, stress, eating disorder, sleeplessness, anger/violent behavior, headaches, back pain, and hip pain. In September 2000 the veteran appeared and testified at an RO hearing in Montgomery, Alabama, with regard to each of the aforementioned issues. The transcript of that hearing is of record. In November 2003 the Board remanded the claims file for additional development, including the acquisition of Social Security (SSA) medical records, VA treatment records and compensation and pension (C&P) examinations. In a rating decision dated in January 2007 the veteran's claim for service connection for PTSD was granted. Service connection having been granted, that issue is no longer on appeal. The issues of entitlement to service connection for back and hip pain are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. The veteran's service-connected PTSD disability is productive of depressed mood, memory impairment, nerves, stress, appetite impairment, sleeplessness, and anger/violent behavior. 2. The veteran's headaches disorder is linked by competent medical evidence to his service-connected PTSD disability. CONCLUSIONS OF LAW 1. A depression disorder separate and distinct from the veteran's service-connected PTSD was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 4.14 (2007). 2. A memory loss disorder separate and distinct from the veteran's service-connected PTSD was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 4.14 (2007). 3. A nerves disorder separate and distinct from the veteran's service-connected PTSD was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 4.14 (2007). 4. A stress disorder separate and distinct from the veteran's service-connected PTSD, was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 4.14 (2007). 5. An eating disorder separate and distinct from the veteran's service-connected PTSD was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 4.14 (2007). 6. A sleeplessness disorder separate and distinct from the veteran's service-connected PTSD was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 4.14 (2007). 7. An anger/violent behavior disorder separate and distinct from the veteran's service-connected PTSD was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 4.14 (2007). 8. A headaches disorder was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for depression, memory loss, nerves, stress, eating disorder, sleeplessness, violent behavior, and headaches. VA medical records dating from 1998 show complaints of and treatment for depressed mood, memory problems, nerves, stress, appetite impairment, sleeplessness /insomnia/nightmares, irritability/anger, and headaches. DD- 214 confirms service in the Persian Gulf from November 6, 1990, to April 16, 1991. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty while in active military service. 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For service members who served in the Southwest Asia theater of operations during the Persian Gulf War who exhibit objective indications of a qualifying chronic disability, such disability may be service connected provided that it became manifest during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2011; and provided that the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §§ 501(a), 1117; 38 C.F.R. §3.317(a)(1). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue; signs or symptoms involving skin; headache; muscle pain; joint pain; neurologic signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under 38 C.F.R. § 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). For purposes of this decision the Persian Gulf War is defined as the period beginning August 2, 1990, through a date to be prescribed by Presidential proclamation or law. 38 C.F.R. § 3.2(i). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records (STRs) contains no record of any complaints of or treatment for depression, memory loss, nerves, stress, eating disorder, sleeplessness, or anger/violent behavior, but do show treatment for headaches on two occasions; the first in January 1990 (which predates the start of the Gulf War), and the second on November 1, 1990, which predates the veteran's November 6, 1990, deployment to the Persian Gulf. Aside for the two lone occasions during service for headaches, the record is devoid of any evidence of these complaints prior to post-service psychiatric treatment in 1998. Diagnosis by VA treatment providers in October 1998 was depression/anxiety; however, VA treatment records dating from December 1998 show a diagnosis of and treatment for post- traumatic stress disorder. In August 1999 the veteran was accorded a compensation and pension (C&P) psychiatric non-PTSD examination. There is no indication that the claims file was reviewed pursuant to this examination, and no psychological testing was done. Axis I diagnosis was depression, but an opinion as to etiology was not rendered. C&P general medical examination done in September 1999 yielded a diagnosis of "headaches related to post-traumatic stress disorder and sinus problem." In August 2001 the veteran was accorded another C&P psychiatric non-PTSD examination. According to this examiner the claims file was reviewed. The examiner documented subjective complaints of "feeling nervous and depressed." The examiner also documented the veteran's complaints of difficulty falling asleep and frequent waking, fatigue, low energy, irritability, memory problems, inability to tolerate stress, and frequent headaches, and noted that the veteran appeared "to be somewhat depressed." Diagnosis was "undiagnosed illness related to the Gulf War with depression." In April 2003 the veteran underwent a psychological evaluation for SSA disability purposes. During the evaluation the veteran complained of nerves, stress, headaches, being awake all night, fighting in his sleep, having flashbacks from the war, and eating one meal a day. He also reported that he had been treated by VA for PTSD since 1998. Axis I diagnosis was "Post traumatic stress disorder, Psychosis, NOS (rule out)." In March 2005 the veteran was accorded a C&P PTSD examination. The examiner advised that the claims file and electronic medical records had been reviewed; described the veteran's prior medical history (including the two prior C&P examinations); and noted the veteran's current claims for depression, nervous condition claimed as memory loss, nerve disorder, stress, eating disorder, sleeplessness, violent behavior and headaches." Axis I diagnosis was "Posttraumatic stress disorder, chronic, severe, secondary to Gulf War trauma." According to the examiner, the veteran's depression, nervous condition claimed as memory loss, nerve disorder, stress, eating disorder, sleeplessness, and violent behavior are symptomatic of his PTSD disorder. He explained as follows: The Veteran was given a diagnosis of posttraumatic stress disorder, because he meets all of the criteria for this disorder. . . . He reports . . . nightmares at least five times a week . . . He also reports posttraumatic stress disorder symptoms of increased arousal, including difficulty falling asleep and staying asleep. He says that his days and nights are mixed up and he can not sleep at night at all. He also described irritability and outbursts of anger, especially with family members. . . . He reports concentration difficulty, which was amply demonstrated during the interview. He complained of hyperstartle response. The Veteran has been described in the past with anxiety and depression and certainly manifested both nervousness and a sense of helplessness and sadness during the interview. It is quite common for Veterans with posttraumatic stress disorder to have depressive symptoms, as well as anxiety symptoms. As noted earlier, from the time of his inpatient psychiatric hospitalization at [place] in 1998, [the veteran] has been diagnosed by some three psychiatrists, two psychologists, and a certified nurse practitioner as having PTSD. On the other hand, two psychiatrists conducting C&Ps did not diagnosis him with PTSD. This examiner has made a thorough review of the medical record in its entirety, has interviewed the veteran, has examined his PTSD M-scale results, and has concluded on the basis of all of this, that the veteran does have PTSD . . . Service connection - headaches As stated before, STRs dated in January 1990 show complaints of and treatment for a headache of three days duration, and STRs dated November 1, 1990, chronicles a headaches of two days duration. These events are obviously prior to the veteran's deployment to the Persian Gulf, so the provisions of 38 C.F.R. § 3.317 are inapplicable with regard to the veteran's claim for headaches. However, the analysis does not end here. VA medical records dating from 1998 document complaints of headaches. During an August 1999 C&P examination the examination the veteran gave a history of headaches for the past four years, which he described as a sharp pain in the left side of the head. He reported that he has headaches almost every other day, and said that he notices them more when he is under stress. He also reported some nausea, but no vomiting or blurred vision. According to the examiner, CT (computed tomography imaging) scan of the head done in January 1999 was normal. Diagnosis was "headaches related to post-traumatic stress disorder and sinus problems." The record contains no competent probative evidence to the contrary. By the veteran's own words a chronic headaches disorder did not become manifest until circa 1994, which is well after his separation from active military service. However, based on a review of the claims folder, and considering the heightened duty to consider the benefit of the doubt rule, see Cromer v. Nicholson, 19 Vet. App. at 217; Russo v. Brown, 9 Vet. App. at 51, the Board finds the August 1999 opinion sufficient for a finding that the veteran's headaches are secondary to his service-connected PTSD disability. In reaching this conclusion, the Board observes that the veteran is competent to report with regard to the nature and frequency of his headaches. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Moreover, the Board finds no reason to doubt the veracity of the veteran's assertions, particularly since his complaints of headaches are well documented in medical records dating from 1998. Id. The Board thus finds the veteran's report of headaches, particularly noticeable when under stress, to be credible. Thus, resolving all reasonable doubt in the veteran's favor, the Board finds that service connection for a headaches disorder secondary to the veteran's service-connected PTSD disability is warranted. 38 C.F.R. § 3.310. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting the request to reopen the claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection - depression, nervous condition, memory loss, stress, eating disorder, sleeplessness, and violent behavior According to the August 2001 C&P examiner, the veteran's nervous condition, memory loss, stress, eating disorder, sleeplessness, and violent behavior stems from his depression. However, the Board notes that a diagnosis of PTSD could not possibly have been issued by either the August 1999 or the August 2001 C&P examiner since the scope of those examinations was specifically limited to mental disorders except PTSD. On the other hand, the Board notes the March 2005 examiner's review of the entire claims file; his examination of the veteran; and his thorough analysis of all of the diagnostic and treatment evidence of record. In view of the fact that a diagnosis of PTSD could not have ensued from the first two examinations even if warranted, and based on the March 2005 examiner's ample rationale for identifying the veteran's depression (along with the veteran's other complaints) as symptoms of PTSD, the Board is persuaded that the veteran's depression, nervous condition, memory loss, stress, eating disorder, sleeplessness, and violent behavior are in fact symptoms of his now service-connected PTSD disability. As noted in the introduction, in January 2007 the veteran was granted service connection for PTSD. Review of the rating decision clearly shows that the aforesaid symptoms, including depressed mood, were used to justify the assigned ratings for this disability. VA regulations provide that pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. The record contains compelling evidence that the veteran's depression, nervous condition, memory loss, stress, eating disorder, sleeplessness, and violent behavior are in fact symptoms of his service-connected PTSD disability, and the January 2007 rating decision confirms that the veteran's service-connected PTSD disability was evaluated based on these symptoms. A separate grant of service connection for depression, memory loss, nerve disorder, stress, eating disorder, sleeplessness, and violent behavior would consequently violate VA pyramiding laws and is thus prohibited. See Brady v. Brown, 4 Vet. App. 203, 206 (1993) (A claimant may not be compensated twice for the same symptomatology as such a result would overcompensate the claimant for the actual impairment of his earning capacity). Reasonable doubt has been considered but not accorded since the evidence in favor of a finding that the veteran's depression and other claims are symptoms of his service- connected PTSD disability outweighs the evidence against such a finding. See Caluza v. Brown, 7 Vet. App. 498, 508-509 (1995) (holding that the benefit-of-the-doubt rule is applicable only when the evidence is in equipoise). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended by 73 Fed. Reg. 23,353-56 (Apr. 30, 2008). Notice which informs the claimant of how VA determines disability ratings and effective dates should also be provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. In letters dated in June 2001 and April 2004 the veteran was apprised of the information and evidence necessary to establish his claims for service connection; of the evidence that VA would seek to provide; and of the information and evidence that he was expected to provide. In correspondence dated in February 2007 he was informed of how VA determines disability ratings and effective dates. Although these notices were provided after the November 1999 rating decision, the issues were readjudicated and a supplemental statement of the case was issued in October 2001 and January 2007. Accordingly, the veteran had actual knowledge based on the notice letters that were provided what criteria needed to be met for a grant of service connection prior to readjudication of the case and transfer to the Board. Moreover, based on the additional notice that was provided to the veteran in the statement of the case (SOC) and supplemental statements of the case (SSOC), a reasonable person would be expected to understand based on the VCAA notices and the SOC/SSOCs what criteria needed to be met. Accordingly, any presumption of prejudice is rebutted in this case. Regarding the duty to assist, STRs and VA treatment records have been obtained and made a part of the record. In addition, the veteran has been accorded multiple C&P examinations; the reports of which are of record. He also testified at an RO hearing; the transcript of which is of record. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. The Board is thus satisfied that VA has sufficiently discharged its duty in this matter. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for headaches is granted. Service connection for PTSD having already been granted, a separate rating for depression, memory loss, nerves, stress, an eating disorder, sleeplessness, and violent behavior is denied. REMAND The veteran also seeks service connection for a back disorder and a left hip disorder. The veteran reports that he operated heavy equipment and did a lot of heavy lifting during service. STRs document treatment in October and November 1990 (prior to the veteran's deployment to the Persian Gulf) for low back pain. In September 1999 the veteran was accorded a C&P general medical examination. Diagnoses included "low back pain;" and "tendonitis/bursitis left hip with normal x-rays." Unfortunately, the claims file was not reviewed pursuant to this examination, and the examiner did not opine as to a nexus between then current findings and the October-November 1990 incidents. In August 2001 the veteran was accorded a C&P spine examination. The examiner reports that the claims file was reviewed. Diagnoses were as follows: 1) Chronic low back pain. Functional loss due to pain, moderate. 2) Chronic left hip pain. Tendonitis. Functional loss due to pain, moderate. Unfortunately, an opinion was again not proffered as to a nexus between these findings and the events during service. The evidence is thus inadequate for a decision regarding these issues. In a letter dated March 8, 2005, the veteran was purportedly notified of a new examination to be conducted on March 8, 2005, at 10:00. Notation on the file copy of the letter indicates that the veteran did not report for this appointment. Needless to say, the Board finds that the veteran should be re-scheduled for a new C&P examination with opinion since there is no evidence that the veteran was notified of his appointment prior to his the scheduled time. 38 C.F.R. § 3.327; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition to the foregoing, the Board notes that evidence compiled since an October 2001 SSOC includes VA treatment records and SSA medical records. Particularly noteworthy among the SSA records is the report of a physical examination done in April 2003. VA regulations provide that upon receipt of additional pertinent evidence after the most recent SSOC has been issued and before the appeal is certified to the Board of Veterans' Appeals and the appellate record is transferred to the Board, the agency of original jurisdiction will furnish the veteran and his representative a Supplemental Statement of the Case. See 38 C.F.R. § 19.31. Review of the record reveals that while the veteran was issued an SSOC in January 2007 after the RO's receipt of the aforesaid evidence, the issues of service connection for a back disorder and service connection for a hip disorder were not addressed in that document. There is also no indication that the veteran has waived review by the RO of this additional evidence as regards his claims for service connection for a back and a hip disorder, or that he has withdrawn his appeals. If these claims are not resolved to the veteran's satisfaction on remand, the SSOC issued, before the case is returned to the Board, must address the evidence dated after the October 2001 SSOC. See 38 C.F.R. § 19.31. Since the claims file is being returned it should be updated to include VA treatment records compiled since June 2, 2004. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Request medical records from the Montgomery VAMC dating from June 2, 2004. Also attempt to obtain any other pertinent treatment records identified by the veteran during the course of the remand, provided that any necessary authorization forms are completed. If no further treatment records exist, the claims file should be documented accordingly. 2. Schedule the veteran for an examination with regard to his claims for service connection for a back disorder and service connection for a hip disorder. The claims file must be made available to, and reviewed by, the examiner, and the examiner must note in his report that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. The examiner is specifically requested to opine as to whether it is less likely than not (less than a 50 percent probability) or at least as likely as not (50 percent probability or greater) that a current back disorder is related to active military service; and whether it is less likely than not (less than a 50 percent probability) or at least as likely as not (50 percent probability or greater) that a current hip disorder is related to active military service. In offering these assessments, the examiner must discuss the veteran's report regarding the onset and continuity of his back and hip symptoms. A complete rationale for all opinions proffered must be set forth in the report provided. 3. After any further development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case in accordance with 38 C.F.R. § 19.31(b)(1) and be given an opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2008). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs