Citation Nr: 0814839 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 04-12 191A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for degenerative disc disease of the lumbar spine. 3. Entitlement to service connection for nerve damage resulting from degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active service from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating determination of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2007, at which time it was remanded for further development. FINDINGS OF FACT 1. The veteran has current PTSD of service origin. 2. The veteran has degenerative disc disease of the lumbar spine of service origin. 3. The veteran currently has L4-L5 ad L5-S1 radiculopathy resulting from service connected degenerative disc disease of the lumbar spine. CONCLUSIONS OF LAW 1. PTSD was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.304(f) (2007). 2. Degenerative disc disease of the lumbar spine was incurred in service. 38 U.S.C.A. § 1110. 3. Nerve damage, namely radiculopathy of L4-5 and L5-S1, was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2006 & 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Service Connection Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. 38 C.F.R. § 3.102. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e. AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV); 38 C.F.R. § 4.125, 4.130 (2007)); 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). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran "engaged in combat with the enemy." 38 C.F.R. § 3.304(f); see 38 U.S.C.A. § 1154(b); Cohen v. Brown, 10 Vet. App. 128 (1997); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 146-47; Zarycki, 6 Vet. App. at 98. If, however, VA determines either that the veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of his alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Cohen, 10 Vet. App. at 146-47; Zarycki, 6 Vet. App. at 98. The Court has held that receiving enemy fire can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. VAOPGCPREC 12-99 (1999). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). A review of the veteran's DD Form 214 demonstrates that he was the recipient of the National Defense Service Medal, the Vietnam Service Medal with two Bronze Stars, and the Vietnam Campaign Medal with Device 1960. The veteran's military occupational specialty was listed as a FA crewman. VA treatment records obtained in conjunction with the veteran's claim reveal that he was diagnosed as having an anxiety disorder in 2000 and 2001. The veteran was diagnosed as having an anxiety disorder with depression at the time of an August 2004 outpatient visit. The veteran was afforded a VA psychiatric consultation in September 2004. The veteran reported that he had been depressed for about five years. He complained of a sad mood and indicated that he had trouble sleeping. The veteran denied any previous psychiatric illnesses. The veteran indicated that he had difficulty with his combat experiences in Vietnam. He stated that he had recurring memories and nightmares following service but these stopped after a short period of time. He still occasionally thought about his combat experiences and about a good friend of his who had been killed. He did not have flashbacks or nightmares and felt relaxed when seeing movies about combat or Vietnam. These did not make his symptoms worse. The diagnosis was dysthymia. The veteran underwent an additional VA psychiatric consultation in August 2006. At the time of the interview, the veteran reported seeing someone commit suicide within one week after arriving in Vietnam. He also indicated that during a combat mission he saw someone decapitated. He further noted having seen someone get his legs blown off by a mine and having a mortar land right next to him but not go off. The veteran reported that he participated in constant fighting and was continually fearful for his own life. It was mistakenly noted that the veteran had earned the Combat Infantry Badge. He reported intrusive recollections of Vietnam when he first came back from Vietnam, which had subsided for many years, but had come back in the past 5 to 6 years. Following examination, the diagnosis was moderately severe chronic PTSD. In January 2007, the Board remanded this matter for additional development, to include a VA psychiatric examination. The veteran was afforded the requested examination in February 2007. With regard to his military experiences, the veteran reported that he served in Vietnam for one year. He stated that he was involved in numerous firefights, mortar attacks, and search and destroy missions, in which he was fired at, had friends injured and killed, and had to kill many enemy personnel. The veteran stated that the most stressful aspect of his military career was seeing people die around him, seeing friends with arms and legs blown off, and killing the enemy. He reported that it was nonstop, constant. The examiner noted the citations that the veteran had been issued and stated that he did not earn the Combat Infantry Badge. The veteran reported that since service he had suffered from depression. He found himself crying a lot and thought he was not wanted or was not doing the right thing. He indicated that his initiative was poor and that he could not get himself to do anything. He felt bad that he had not kept in contact with a friend who had lost his legs in Vietnam. The examiner stated that with regard to the question of PTSD, the evidence was neither clear nor consistent. The veteran reported being exposed to continued combat-related traumatic events in which he was threatened with death and witnessed others being injured or killed. The examiner noted that the veteran reported feeling constantly anxious about Vietnam and continually ruminated about buddies who were killed or injured in combat. He reported having had these flashbacks for five years. The examiner stated that the veteran's claims folder and DD 214 presented contradictory information. At the time of a 2004 interview, the veteran denied having flashbacks and stated that he felt relaxed about seeing combat-related movies or movies about Vietnam. The examiner further observed that the veteran denied intrusive thoughts of combat related traumatic events; denied recurrent distressing dreams of the event; denied avoiding activities, places, or people that aroused recollections of the trauma; and denied feelings of detachment or estrangement from others. The examiner impression was that the veteran had depressive disorder, NOS. He did not render an opinion as to the etiology of the current depression. Evidence received subsequent to the February 2007 VA examination includes a December 2006 report from the Woodhaven, New York, VetCenter. The veteran was noted to have gone to Vietnam in January 1968. He was attached to the 25th Infantry Division. During his tour of duty, he reportedly experienced multiple traumas. The traumas included seeing one soldier commit suicide after his being in Vietnam for only a week. The veteran also saw bodies in a body bag on a heliport, with one body bag actually moving. He further observed a man being decapitated and had a mortar land close to his position causing him to think he was going to die. The veteran also reported seeing someone lose both legs when a mine blew up in front of him. A diagnosis of chronic PTSD was rendered. In a December 2007 letter, F. T. indicated that he had served with the veteran in Vietnam during 1968 and 1969. He reported that they worked in artillery and fired 105 mobile howitzers. He stated that they were attached to the 25th Infantry Division. He noted that they protected the Tan Su Nhat Airport during the Tet Offensive. F.T. stated that they experienced constant engagement with the Viet Cong as they moved with the 25th Infantry Division through Vietnam. He reported that they experienced many fights and that a major encounter was a human wave in October 1968. He stated that the combat was intense and one individual received the Silver Star. F. T. indicated that he and the veteran fired "bee hive" rounds at point blank range to protect themselves and to repel the enemy. He noted that in the morning they saw a field of dead bodies that were killed by their fire. He reported that they were both numb and in a state of disbelief of the horror they saw after the fire fights. He noted that R. R. was in artillery with both the veteran and himself and that in August 1968 they experienced an incoming mortar attack. R. R. was about 50 feet away from them and a mortar landed near him causing him to lose both his legs. He indicated that it was a terrible experience. For a veteran to prevail in his claim it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). There is conflicting evidence as to whether the veteran meets the criteria for a current diagnosis of PTSD. The veteran has been diagnosed as having PTSD by mental health professionals at a VA PTSD clinic in September 2006 and by a psychologist at the VetCenter in December 2006. While the psychologist who conducted the February 2007 VA examination did not diagnose PTSD, he did also not render an opinion as to whether the diagnosed expressive disorder was related to service (although a continuity of symptomatology has been reported). Moreover, the examiner did not have access to previous examinations or to the more recent diagnoses of PTSD. The weight of the evidence is at least in equipoise as to whether the veteran meets the criteria for a diagnosis of PTSD. As to stressors, the veteran has reported many combat stressors. These have been noted by the examiners when reaching their diagnoses of PTSD. The veteran also submitted a letter from F. T., an individual who served with the veteran while he was in Vietnam. F. T. has corroborated many of the stressors and actually provided the name of the individual who lost his legs in close proximity to the veteran and himself. Even assuming arguendo that the veteran did not serve in combat, F.T's statement provides supporting evidence of the claimed stressor. In a photocopy of a letter to the veteran, postmarked in February 1969, L R., also known as R. R, reference was made to him having lost his legs while in Vietnam. The weight of the evidence is that the current diagnosis of PTSD is related to in-service stressors. Resolving reasonable doubt in the veteran's favor, the evidence supports each of the three elements for service connection. As such, service connection is warranted for PTSD. Degenerative Disc Disease of the Lumbar Spine with Resulting Radiculopathy Certain chronic diseases, including arthritis, will be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). The available service medical records do not reveal any complaints or findings of a low back disorder. In an October 2002 statement, F. T. indicated that he served with the veteran in Vietnam. He noted that there were numerous times when he and the veteran had to carry 105 rounds from drop off points to their gun position. He reported that they carried them on their neck and back for as much as 50 to 100 yards. He indicated that problems with their backs and necks were quite apparent at the time but they never reported it to anyone. In a May 2000 statement in support of claim, the veteran indicated that the ammunition which he carried weighed 75 pounds. He submitted a picture of himself carrying the ammunition while in Vietnam. VA treatment records obtained in conjunction with the veteran's claim reveal that he was diagnosed with degenerative joint disease of the lumbar spine. Private treatment records reveal that the veteran sustained an injury to his low back in February 2000. He noted having had pain in his back with radiation to his left leg for the past two months at the time of an April 2000 outpatient visit. X-rays revealed advanced degenerative changes at L4-5 with disc space collapse and mild spondylosis at other levels. In an August 2002 letter, the veteran's private physician, L. Langman, M.D., reported that the veteran was under his care. He noted that the veteran had a history of lower back pain dating from his service in Vietnam, at which time he did heavy lifting. He noted that the veteran had described the work he did and had provided photographs substantiating his work activity. As a result of this, he complained of lower back pain, constant and unremitting, with radiation to the lower extremities. He noted that physical examination revealed spasms in the lumbar spine. There was also increased lumbar lordosis. Knee reflex was decreased in the left knee. The veteran's gait was antalgic and there was weakness of dorsiflexion of the great toe on the left. An emg/ncv study performed in August 2002 had shown radiculopathy at the level of L4-5 and L5-S1. It was Dr. Langman's impression that the veteran had lumbar radiculopathy at L4-5 and L5-S1. He opined that the above was directly related to service-connected injury during the veteran's Vietnam service. In January 2007, the Board remanded this matter for further development to determine the etiology of any current low back disorder and/or resulting nerve damage. The examiner was requested to render an opinion as to whether it was at least as likely as not that any current low back disorder and/or resulting nerve damage was related to the veteran's period of service. The veteran was afforded the requested VA examination in February 2007. The claims folder was noted to be available and to have been reviewed. The examiner observed that the veteran had a history of lumbosacral injury secondary to carrying ammunition in 1968 while in Vietnam with residual low back pain since that time. He was noted to have had chronic low back pain with radiation into the thighs over the last 10 years. Following examination, a diagnosis of lumbosacral spondylosis, service-connected, was rendered. In a March 2007 letter, Dr. Langman again provided essentially the same information that he had provided in his previous letter. Following examination, he again indicated that the veteran had lumbar radiculopathy of L4-5 and L5-S1, which was directly related to service-connected injury while in Vietnam. While the Board notes that the veteran's service medical records are devoid of any complaints or findings of a low back disorder, his reports of having sustained an injury to his low back in service are consistent with the duties performed while he was in service. Moreover, he has submitted a letter from a fellow soldier who noted the trauma and problems they both had with their backs as a result of having to lift heavy ammunition and carry it from one place to another. Further, both the veteran's private physician and the VA examiner have linked the veteran's current low back disorders to his period of service. The VA examiner found an etiological link following a comprehensive examination and a review of the claims folder. Resolving reasonable doubt in favor of the veteran, service connection is warranted for degenerative disc disease of the lumbar spine. The VA and private examinations attribute current neurologic impairment to the now service connected disc disease of the lumbar spine. Service connection for this nerve damage is therefore, also warranted. ORDER Service connection for PTSD is granted. Service connection for degenerative disc disease of the lumbar spine is granted. Service connection for nerve damage, namely radiculopathy of L4-5 and L5-S1, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs