Citation Nr: 1040751 Decision Date: 10/29/10 Archive Date: 11/04/10 DOCKET NO. 05-13 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable rating for hemorrhoids. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1969 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran, through his service representative, waived agency of original jurisdiction (AOJ) of additional evidence submitted in October 2010. The Board finds that additional AOJ review is not required for other evidence added to the record since the June 2009 supplemental statement of the case because that evidence is either cumulative of information previously considered or pertains to matters addressed in the favorable decision below. The issues of entitlement to service connection for Parkinson's disease and entitlement to a total rating based on individual unemployability due to service- connected disabilities (purportedly based on psychiatric disability) have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The evidence demonstrates the Veteran's PTSD was incurred as a result of an in-service stressor. 3. Hemorrhoids are manifested by no more than a mild or moderate impairment. CONCLUSIONS OF LAW 1. PTSD was incurred as a result of military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2010). 2. The criteria for a compensable rating for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the Veteran in letters from the RO dated in December 2003, January 2006, May 2006, and November 2008. Those letters notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claims and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." 73 Fed. Reg. 23,353- 23,356 (Apr. 30, 2008). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in May 2006. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private treatment and examination reports, and the statements in support of the claim. Further attempts to obtain additional evidence would be futile. The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Although the Veteran's service representative asserted that an additional VA examination was required to adequately assess the Veteran's service-connected hemorrhoid disability, there is neither objective nor subjective evidence of a large or thrombotic, irreducible, hemorrhoid with excessive redundant tissue, persistent bleeding with secondary anemia, or anal fissures indicative of a more severe disability. The manifest symptoms as reported by the Veteran are not disputed by the examination findings and there is no indication that further medical evaluation or comment could substantiate the Veteran's claim as to this disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claims would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). For PTSD claims VA law provides that service connection "requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in- service stressor occurred. . . ." 38 C.F.R. § 3.304(f) (effective before and after July 13, 2010). Section 4.125(a) of 38 C.F.R. incorporated the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) as the governing criteria for diagnosing PTSD. For PTSD claims 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. 38 C.F.R. § 3.304(f)(2). Effective July 13, 2010, VA regulations related to PTSD claims were revised to provide 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 posttraumatic stress disorder and that 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. The term "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. 38 C.F.R. § 3.304(f)(3) (effective from July 13, 2010). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court held that VA had adopted the 4th edition of the DSM-IV and noted that the major effect was that the criteria changed from an objective "would evoke ... in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard requiring exposure to a traumatic event and response involving intense fear, helplessness, or horror. The Court further held the sufficiency of a stressor was now a clinical determination for an examining mental health professional. Id. at 140, 141. In Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court held that a Veteran need not corroborate his actual physical proximity to (or firsthand experience with) and personal participation in rocket attacks while stationed in Vietnam. See also Suozzi v. Brown, 10 Vet. App. 307 (1997) (holding that "corroboration of every detail [of a claimed stressor] including the appellant's personal participation" is not required; rather an appellant only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2010). In this case, service treatment records are negative for complaint, treatment, or diagnosis of a psychiatric disorder. A March 1970 report, however, provided a diagnosis of psychophysiologic distress based upon the Veteran complaints of diarrhea, cramps, nausea and a long-history of an upset stomach. Service records show the Veteran served in the Republic of Vietnam from January 1970 to December 1970. Records show his principle duties were as a clerk typist. Private medical billing records show the Veteran was treated for a nervous disorder in 1981, 1982, and 1983. No additional information as to this treatment is of record. In statements in support of his claim the Veteran reported stressor events in service including having been housed in Vietnam near a prisoner-of-war camp, having experienced a mortar attack on his base in July 1970, having worked near a graves registration facility where the bodies of servicemen were prepared for shipment home, and having visited a severely wounded relative in the hospital in Vietnam. In statements submitted in support of the Veteran's claim his cousin, H.J.V., reported that the Veteran had visited him in the hospital after he was severely wounded in Vietnam. He also described the circumstances of service in the area near the Veteran's base during their tour of duty. A December 2003 private examination report provided a diagnosis of chronic, delayed, severe PTSD. The examiner indicated that in preparing the report, she read a four page account of the traumatic stressors claimed by the Veteran to have occurred in Vietnam and an original newsletter of the 69th Engineering Battalion dated July 1970 outlining various activities in which his unit was involved. The examiner noted that psychological tests were conducted and that the Veteran presented with classic symptoms of service-related PTSD. The report identified symptoms including difficulty completing tasks in a timely fashion, generalized anxiety, waves of long-term memory loss, flashbacks and intrusive thoughts, insomnia, overwhelming feelings of anger and sorrow with crying spells, withdrawal, and bouts of severe depression. A February 2004 VA examination report noted an Axis I diagnosis of depressive disorder. The examiner stated the criteria for a diagnosis of PTSD were not met, but provided no additional rationale for this opinion. Subsequent VA treatment records included assessments of adjustment disorder, depressive disorder, symptoms of PTSD, and diagnoses of depression and rule out PTSD. A January 2009 VA examination report briefly summarized the evidence of record and examination findings. The examiner provided an Axis I diagnosis of bipolar affective disorder, depressed type, and an Axis II diagnosis of schizoid personality disorder. It was noted the criteria for a diagnosis of PTSD were not met. The examiner reported that none of the hallmarks in any category were met for a diagnosis of PTSD, but provided no comments as to the reported findings upon previous psychological testing. No additional psychological testing was apparently conducted. The examiner also stated that the Veteran's primary difficulty was depression which had a genetic component based upon his family history; however, no additional comments or rationale as to this opinion were provided. VA medical correspondence dated in August 2010 from a licensed clinical psychologist, noted that the Veteran had been receiving weekly and biweekly psychotherapy beginning on July 8, 2010. It was her clinical opinion that the Veteran had PTSD due to multiple traumas he experienced in Vietnam, including a mortar attack on his barracks and seeing his cousin after he was wounded. It was noted that these events resulted in his fear for his life and the life of another and that since then he had symptoms including nightmares, flashbacks, intrusive thoughts, avoidance of things that reminded him of the trauma, experiencing physical and psychological distress when reminded of the trauma, loss of interest in things he once enjoyed, emotional numbing with anger and irritability, sleep disturbance, exaggerated startle response, and hypervigilance. Based upon the evidence of record, the Board finds the evidence demonstrates the Veteran's PTSD was incurred as a result of an in-service stressor. The record includes persuasive medical evidence diagnosing PTSD and establishing a link between the current symptoms and a verified in-service stressor. The Veteran's statements as to the events he experienced in Vietnam are credible. Events described by the Veteran as to a mortar attack on his base are consistent with the conditions and circumstances of his service and his statements as to having visited an injured relative are verified by credible supporting evidence. See, e.g., 38 U.S.C.A. § 1154(a). A December 2003 private examiner's diagnosis of PTSD is shown to have been provided based upon a thorough examination of the Veteran and psychological testing. The diagnosis is consistent with the diagnosis and opinion of the Veteran's VA treating clinical psychologist. The Board further finds that the February 2004 and January 2009 VA examination findings are not well supported by adequate rationale and neither opinion is based upon additional psychological testing nor includes discussions addressing the reported December 2003 psychological test findings. Overall, the medical evidence in favor of the Veteran's claim is persuasive. Therefore, the Board finds that entitlement to service connection for PTSD is warranted. Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2010). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2010). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2010). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2010). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2010). 733 6 Hemorrhoids, external or internal: Ratin g With persistent bleeding and with secondary anemia, or with fissures 20 Large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences 10 Mild or moderate 0 38 C.F.R. § 4.114, Diagnostic Code 7336 (2010). In this case service medical records show the Veteran was treated for hemorrhoids in September 1970 and for internal hemorrhoids in January 1972. The Veteran's January 1972 separation examination revealed a normal clinical evaluation of the anus and rectum. Private medical records show internal hemorrhoids were observed upon flexible sigmoidoscopy in February 1986. A December 2007 colonoscopy revealed a small polyp in the ascending colon and cecum. On VA examination in February 2004 the Veteran reported that he had undergone surgery for hemorrhoids in 1988. He stated that at times when he has to strain at stool he had bright red blood in the rectum. He stated that approximately one day per week he had itching and occasional swelling for which he used Preparation H with good results. He stated he occasionally experienced pain in the anal region after prolonged sitting which was a bit disruptive in his work as a computer operator. Overall, his hemorrhoids were described as recurrent despite intervention, but that they were not severe and there were no plans for repeat surgery. An examination revealed a few external hemorrhoids, but that none were engorged or bleeding. The diagnosis was mild hemorrhoids. Subsequent VA treatment records note a history of hemorrhoids without specific additional treatment. On VA examination in April 2009 the Veteran reported he had undergone hemorrhoidectomies in 1979 and 1986 with a gradually worsening of this disorder over the past ten years. He complained of intermittent symptomatology generally in response to hard bowel movements approximately once every two months. He stated that during these episodes he noticed blood spotting on toilet tissue and that approximately 25 percent of the time the spotting was accompanied by protrusion. He estimated his pain during these episodes as four on a ten point scale. He stated that he treated the disorder with Preparation H and that the symptoms gradually abated over a three to four day period. He stated he also used a stool softener, but reported no other symptoms related to his hemorrhoid disability. The examiner noted the rectal area appeared normal. There were no signs or local pathology or sign tags at the time of examination. The final diagnosis and conclusion was no hemorrhoid seen upon physical examination. It was specifically noted that there was no evidence of bleeding or thrombosis, fecal incontinence, necessity for pads, trauma to the rectus or anus, anal infections, fistula in ano, fecal leakage, abnormal size of the cecum, anemia, fissures, rectal prolapse, or abnormal sphincter tone. It was noted that the disability had no effect on occupation or daily activities. Based upon the evidence of record, the Board finds the Veteran's service-connected hemorrhoids are manifested by no more than a mild or moderate disability. Although the Veteran asserted that his VA examinations were inadequate, there is no probative evidence of large or thrombotic, irreducible hemorrhoids with excessive redundant tissue nor persistent bleeding with secondary anemia or fissures. Therefore, entitlement to a compensable rating must be denied. The Board further finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. The service-connected disorder is adequately rated under the available schedular criteria. The most recent VA examination found the Veteran's service-connected disability had no effect on his occupation or daily activities. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claim for an increased rating. ORDER Entitlement to service connection for PTSD is granted. Entitlement to a compensable rating for hemorrhoids is denied. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs