Citation Nr: 0810207 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-08 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for large cell lymphoma, including as due to ionizing radiation. 2. Entitlement to service connection for a psychiatric disability, including depression, anxiety, insomnia, and post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Michael B. Roberts, Attorney at Law WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from April 1945 to November 1945. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Waco, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a July 2004 rating decision, the RO denied service connection for large cell lymphoma, claimed as resulting from exposure to ionizing radiation, In a December 2004 rating decision, the RO denied service connection for a psychiatric disability, including depression, anxiety, insomnia, and PTSD. In a July 2007 decision, the Board denied both claims. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2007, the Court granted a joint motion by the veteran and VA to vacate the July 2007 Board decision, and remand the case for additional action. In February 2006, the RO denied the veteran's claim for service connection for lung cancer. The veteran had claimed that he had used tobacco as a result of psychiatric disorders, including PTSD, anxiety, and depression, that he claimed were service connected. The veteran did not file a notice of disagreement within a year of the mailing of that decision; so the decision became final. In a March 2007 Travel Board hearing before the undersigned Veterans Law Judge, and through an April 2007 statement from a private psychiatrist, the veteran has indicated that he wishes to reopen a claim for service connection for lung cancer based on tobacco use related to psychiatric disorders. The request to reopen that claim has not yet been addressed by the RO. The Board refers that request to the RO for appropriate action. The issue of service connection for large cell lymphoma 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. FINDINGS OF FACT 1. During service, the veteran feared for his life when his ship was hit by typhoons, and as a result of knowing that the ship had previously been hit in a kamikaze attack. 2. The veteran developed PTSD as a result of traumatic experiences during service. CONCLUSION OF LAW The veteran's PTSD was incurred as a result of events during service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he developed a psychiatric disability, described as depression, anxiety, insomnia, and PTSD, as a result of traumatic experiences during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain chronic disabilities, including psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may be granted for a 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. PTSD is a psychiatric disorder that develops as a result of traumatic experience. When PTSD is diagnosed after separation from service, service connection must be shown by: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service varies depending on whether or not the veteran engaged in combat with the enemy. If the veteran engaged in combat with the enemy, if the claimed stressor is related to that combat, and if the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, then, in the absence of clear and convincing evidence to the contrary, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). If the veteran did not engage in combat with the enemy, his lay testimony, by itself, is not enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records that corroborate the veteran's testimony as to the occurrence of the claimed stressor. Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The veteran's service medical records do not show any mental health complaints or treatment. The veteran has not reported having received mental health treatment during the years following service. In September 2004, the veteran requested service connection for depression, anxiety, and insomnia related to events during his service. In November 2004, he completed a report of stressors during his service. He indicated that in May 1945 a Japanese suicide bomber, or kamikaze, hit the USS St. George, killing three sailors. He stated that during his service on the St. George he feared that the ship would again come under kamikaze attack. He reported that this fear had made it difficult for him to sleep. The veteran reported that the St. George was hit by hurricanes during his service on that ship. He stated that he feared being washed overboard and drowning, as he was not able to swim. The veteran reported that after service he remained sad all of the time, and stayed to himself. The veteran's claims file contains records of the locations and dates of the veteran's service, and of the history of the ship on which he served. Reports of change from the St. George show that the veteran began service aboard the ship during the month ending September 20, 1945, and ended service aboard the ship during the month ending November 1, 1945. An excerpt from the Dictionary of American Naval Fighting Ships indicates that, in May 1945, the ship was hit by a kamikaze, and three men were killed. The St. George reportedly rode out a typhoon in Okinawa in mid-September 1945, and rode out two more typhoons in the Japanese Inland Sea between late September and mid-November 1945. U. S. Navy War Diaries for the St. George document that the ship was in typhoons on September 16 and 17, 1945, October 4, 1945, and October 9, 1945. On VA outpatient treatment in December 2004, a screening of the veteran for depression was positive. A treating physician started the veteran on medication for depression. In a December 2004 statement, private psychiatrist S. L. M., M.D., reported having reviewed records regarding the veteran's service and his lymphoma. Dr. M. noted the veteran's experiences in service of being aboard a ship during typhoons, and hearing about an earlier kamikaze attack on the ship. Dr. M. found that the veteran had experienced depression and anxiety episodically since service. Dr. M. provided the opinion that the veteran had PTSD, depression, and anxiety that were related to traumatic experiences during his service. In February 2005, Dr. M. provided an addendum to his December 2004 statement. Dr. M. stated that the veteran had symptoms that met the criteria for diagnosis of PTSD in the DSM-IV. Dr. M. stated that the veteran also had major depression and generalized anxiety disorder. In May 2005, Dr. M. examined the veteran and reviewed the veteran's claims file. Dr. M. noted that service branch records showed that the St. George rode out three typhoons in September and October 1945. Dr. M. stated that the fear inspired by hearing about the earlier kamikaze attack on his ship, and the multiple experiences of being aboard the ship when it was hit by a typhoon, were traumatic stressors sufficient to cause PTSD. Dr. M. expressed the opinion that the veteran had PTSD and depression, and that both were related to his traumatic experiences during service. The veteran had a VA psychiatric examination in July 2005. The veteran reported having daily intrusive memories of his experiences during service. He stated that the intrusive memories had bothered him since he was 62 years old, and had led him to retire from working. He related that his traumatic experiences during service had included being in three typhoons. He indicated that at the time he feared falling overboard and drowning. He stated that he thought about seeing an atomic bomb explode, although he later agreed that he had not witnessed that event. The veteran indicated that he had worked for many years changing tires, and that he had retired from that job. He reported irritability, insomnia, and emotional numbing. He did not indicate that he startled easily or was hypervigilant. The examiner, E. C., M.D., concluded that the veteran did not have PTSD. Dr. C. found that the veteran had dementia and an anxiety disorder. Dr. C. noted a history of alcohol dependence, in full remission. In March 2007, the veteran had a Travel Board hearing at the RO before the undersigned Veterans Law Judge. The veteran related feeling great fear during service when his ship was in typhoons. He indicated that his fear was increased because the ship was a tender, carrying aircraft fuel, and he feared that the ship could explode. He related that after service he had great difficulty getting along with people. In an April 2007 statement, Dr. M. provided information on his professional expertise , noting that he was certified by the American Board of Psychiatry and Neurology. Dr. M wrote that the typhoons that the veteran experienced during service, and his knowledge of the earlier kamikaze attack on his ship, had caused the veteran to feel intense fear and helplessness. Dr. M. opined that those events were sufficient stressors to cause the veteran's PTSD. There are conflicting professional opinions as to whether the veteran has PTSD. Dr. M. has diagnosed the veteran as having PTSD. Dr. M. also indicates that the veteran has depression and anxiety that are related to his experiences in service. Dr. C., the VA psychiatrist who examined the veteran in 2005, concluded that the veteran does not have PTSD. Dr. C. found that the veteran had an anxiety disorder, but he did not discuss whether the anxiety disorder is related to the veteran's experiences in service. Each of the two psychiatrists reviewed the veteran's claims file, and met with the veteran on one occasion. Each has explained his conclusions and opinions. The Board finds that the two conflicting opinions are of approximately equal persuasive value. Giving the benefit of the doubt to the claimant, the Board will accept that the veteran has a valid professional diagnosis of PTSD. Dr. M. opines that the veteran's PTSD is related to stressors in service, particularly the typhoons that hit his ship, and the knowledge of the prior kamikaze attack on the ship. There is medical evidence, then, linking in-service stressors to current PTSD. The veteran does not assert, and the evidence does not tend to show, that he engaged in combat with the enemy. Therefore, his claim for service connection for PTSD must be supported by service records corroborating the reported stressors. Official records for the St. George document the May 1945 kamikaze attack, and the encounters of the ship with three typhoons during the period when the veteran was aboard. Service records corroborate the stressors that Dr. M. links to the veteran's PTSD. As there is appropriate evidence supporting each element of the veteran's claim for service connection for PTSD, the Board grants that claim. Regarding the claim for service connection for a psychiatric disorder, including PTSD, the Board is granting the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with regard to the duties to notify or assist the veteran regarding that claim, such error was harmless, and will not be further discussed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Barger v. Principi, 16 Vet. App. 132 (2002). ORDER Entitlement to service connection for PTSD is granted. REMAND The veteran has large cell lymphoma. He contends that the lymphoma developed as a result of his exposure during service to ionizing radiation. He asserts that he was exposed to ionizing radiation while aboard the USS St. George in September and October 1945, while that ship participated in the occupation of Japan, in the months after the United States dropped atomic bombs on Hiroshima and Nagasaki, Japan. The December 2007 joint motion for remand indicated that VA should, in accordance with 38 C.F.R. § 3.311, request from the U.S. Department of Defense an estimate of the dose of ionizing radiation to which the veteran was exposed during service. The Board will remand the lymphoma claim for the RO to request this information. Accordingly, the case is REMANDED for the following action: 1. Contact the Defense Threat Reduction Agency (DTRA) of the U.S. Department of Defense, and request an estimate of the dose of ionizing radiation to which the veteran was exposed during service. The period of potential exposure to radiation was the veteran's shipboard service in Japan in 1945, in the months following the explosion of atomic bombs at Hiroshima and Nagasaki, Japan. Specifically, the veteran served aboard the USS St. George in September and October 1945. The St. George was anchored at Wakanoura Wan, or Wakayama, Honshu, Japan from late September 1945 to mid November 1945. 2. If it is determined that the veteran was exposed to ionizing radiation, refer the claim to VA's Under Secretary for Benefits in accordance with 38 C.F.R. § 3.311(c). 3. After completion of the foregoing and any other development deemed appropriate, readjudicate the veteran's claim for service connection for large cell lymphoma, including as based on exposure to ionizing radiation. If the claim remains denied, the issue a supplemental statement of the case and afford the veteran an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matter that 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. 2007). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs