Citation Nr: 0814894	
Decision Date: 05/06/08    Archive Date: 05/12/08

DOCKET NO.  06-13 326	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, 
Oregon


THE ISSUES

1.  Entitlement to service connection for post-traumatic 
stress disorder (PTSD).

2.  Entitlement to service connection for depressive disorder 
and anxiety disorder.

3.  Entitlement to service connection for residuals of 
bilateral foot fractures including degenerative arthritis, 
plantar fasciitis, and pes planus.

4.  Entitlement to service connection for right ankle 
condition including ligamentous laxity and degenerative 
arthritis, to include as secondary to service-connected left 
knee and left ankle disabilities.

5.  Entitlement to service connection for right knee 
condition including chondromalacia patellae and degenerative 
arthritis, to include as secondary to service-connected left 
knee and left ankle disabilities.

6.  Entitlement to service connection for left elbow 
condition including calcific olecranon bursitis and 
degenerative arthritis.

REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' 
Affairs


ATTORNEY FOR THE BOARD

S. Richmond, Associate Counsel


INTRODUCTION

The veteran had active military service from July 1965 to 
June 1969, and June 1969 to June 1978.

This matter comes to the Board of Veterans' Appeals (Board) 
from a November 2004 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Cleveland, 
Ohio, which denied service connection for PTSD, residuals of 
foot fracture, residuals of right ankle injury, residuals of 
right knee injury, and left elbow shattered cartilage.

Based on the medical evidence of record, the psychiatric 
disabilities have been characterized as reflected on the 
cover page.

The issues of service connection for disabilities of the 
bilateral feet, right ankle, right knee, and left elbow are 
addressed in the REMAND portion of the decision below and are 
REMANDED to the RO via the Appeals Management Center (AMC), 
in Washington, DC.


FINDINGS OF FACT

1.  The competent medical evidence shows the veteran does not 
have a diagnosis of PTSD.

2.  Resolving all doubt, the record shows confirmed combat 
stressors in Vietnam and present diagnoses of depressive 
disorder and anxiety disorder related to these stressors.


CONCLUSIONS OF LAW

1.  PTSD was not incurred in or aggravated by service. 38 
U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 3.159, 3.102, 3.303, 4.125 (2007).

2.  Depressive disorder and anxiety disorder were incurred in 
service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 
2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran seeks service connection for a psychiatric 
disability to include PTSD and depression.  An April 2004 VA 
psychiatric examination report shows that his stressors 
include his unit being attacked by Viet Cong during Christmas 
season 1970 in Vietnam after his unit set up a "tripwire 
ambush" with claymore mines.  He recalled finding a wounded 
Viet Cong soldier and two dead soldiers and having to crawl 
close to various Viet Cong to find out whether they were 
dead, wounded, or dangerous.  He also reported that in May 
1971 while he was a company executive officer he saw many 
"horrible tragedies."  He witnessed death due to friendly 
fire and many accidents; he recalled one officer walking into 
an ambush that had been set up by another American Unit.  He 
contends that his in-service stressors have caused his 
present psychiatric problems.

In seeking VA disability compensation, a veteran generally 
seeks to establish that a current disability results from 
disease or injury incurred in or aggravated by service. 38 
U.S.C.A §§ 1110, 1131.  "Service connection" basically 
means that the facts, shown by the evidence, establish that a 
particular injury or disease resulting in disability was 
incurred coincident with service in the Armed Forces, or if 
preexisting such service, was aggravated therein.  This may 
be accomplished by affirmatively showing inception or 
aggravation during service or through the application of 
statutory presumptions.  Where chronicity of a disease is not 
shown in service, service connection may yet be established 
by showing continuity of symptomatology between the currently 
claimed disability and a condition noted in service.  A 
veteran may also establish service connection if all of the 
evidence, including that pertaining to service, shows that a 
disease first diagnosed after service was incurred in 
service. 38 C.F.R. § 3.303.

Service connection for PTSD requires medical evidence 
diagnosing the condition in accordance with 38 C.F.R. § 
4.125(a) (conforming with the American Psychiatric 
Association's Diagnostic and Statistical Manual of Mental 
Disorders (4th ed.)) (DSM-IV); 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 U.S.C.A. § 1154; 38 C.F.R. 
§ 3.304(f).  

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).

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the veteran prevailing in either 
event, or whether a preponderance of the evidence is against 
a claim, in which case, the claim is denied.  38 U.S.C.A. § 
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Personnel records show the veteran served in Vietnam from 
August 2, 1970 to August 1, 1971 and earned, in pertinent 
part, the Combat Infantryman Badge and the Bronze Star Medal 
with V Device.  These medals establish that the veteran was 
involved in combat in service; thus, his reports of the 
stressors in service are accepted as conclusive evidence of 
their occurrence.  See 38 C.F.R. § 3.304(f).

An April 2004 VA psychiatric examination report notes the 
veteran's reported stressors and shows that his present 
symptoms include symptoms of re-experiencing.  He reported 
that he had thoughts of Vietnam several times a month and 
that distressing thoughts could be set off by television 
coverage of the war in Iraq.  For a number of years in the 
past he experienced nightmares several times a month with 
repetitive themes such as running and feeling a strong sense 
of danger.  At the present time, he experienced nightmares 
infrequently approximately every couple of months.  He also 
experienced a sense of being back in combat mode by certain 
smells such as burning leaves, decomposing organic material, 
or the sound of a Huey helicopter.  His avoidance symptoms 
included not filling out the PTSD questionnaire form and 
living a rather solitary life.  He also had some symptoms of 
arousal in that he had multiple awakenings at night; it was 
noted, however, that he suffered from sleep apnea and 
numerous painful physical disabilities and that he thought 
about problems other than Vietnam.  He had some symptoms of 
hypervigilance; he had three weapons in his bedroom, a 150-
pound dog, and noted that he preferred to sit with his back 
to a wall whenever he went out.  

The examiner found that the veteran did not meet the criteria 
for a PTSD diagnosis; but did meet the criteria for the 
diagnoses of depressive disorder and anxiety disorder not 
otherwise specified.  The veteran was found to have a number 
of symptoms seen in patients with PTSD without currently 
meeting the criteria for the diagnosis.  Specifically, his 
current symptoms of avoidance and arousal did not currently 
meet the criteria.

The evidence does not show a diagnosis of PTSD; so service 
connection for PTSD is not warranted.  Service connection 
cannot be granted if there is no present disability.  
38 U.S.C.A. § 1110.  

However, the evidence shows that the veteran has a diagnosis 
of depressive disorder and anxiety disorder, which was noted 
after review of the veteran's extensive stressor history in 
service.  As the medical evidence shows confirmed stressors 
in service and present diagnoses of depressive disorder and 
anxiety disorder related to these stressors, all doubt is 
resolved in the veteran's favor and service connection is 
warranted for these disabilities.  See 38 C.F.R. § 3.102.  

The veteran's service connection claim for a psychiatric 
disability to include PTSD and depressive disorder has been 
considered with respect to VA's duty to notify and assist.  
Given the favorable outcome noted above, no conceivable 
prejudice to the veteran could result from this adjudication.  
See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). 


ORDER

Entitlement to service connection for post-traumatic stress 
disorder (PTSD) is denied.

Entitlement to service connection for depressive disorder and 
anxiety disorder is granted subject to the rules and payment 
of monetary benefits.


REMAND

The veteran seeks service connection for residuals of a foot 
fracture.  He mentioned on an April 2004 VA orthopedic 
examination report that he developed foot pain as a 
consequence of many years of carrying heavy packs on long 
forced marches and multiple parachute jumps carrying full 
equipment.  He estimated that he completed approximately 50 
to 55 successful parachute jumps in service.  Personnel 
records show he was a Parachutist and Airborne Ranger in 
service and earned a Parachute Badge.  Post-service VA 
medical records dated from 2001 to 2007 also show complaints 
of painful feet and diagnoses of osteoarthritis and plantar 
fasciitis in the bilateral feet.  

As the record shows multiple parachute jumps in service with 
complaints of pain and current diagnoses of foot 
disabilities, the veteran should be afforded a VA examination 
to determine whether the present diagnoses of foot 
disabilities are at least as likely as not related to his in-
service parachute jumps. 

The veteran also seeks service connection for a right ankle 
condition, a right knee condition, and a left elbow 
condition.  He attributes the left elbow disability primarily 
to a wrestling injury in 1972 or 1973 and the right ankle and 
right knee disabilities to parachute jumping in service.  As 
noted, personnel records show he was a Parachutist in 
service.  Service medical records also note that he was the 
intra Army heavyweight wrestling champion.  VA medical 
records dated from 2004 to 2007 show chronic complaints of 
pain in the ankles and knees.  X-ray examination in April 
2004 shows degenerative changes of the right ankle and hind 
foot, chondromalacia patellae and moderately marked 
degenerative arthritic changes of the right knee, and 
calcific olecranon bursitis and degenerative changes of the 
left elbow.  A medical opinion should be provided to 
determine whether the present disabilities in the right 
ankle, right knee, and left elbow are related to the 
veteran's wrestling and/or parachute jumps in service.  
Alternatively, the veteran asserts that his disabilities of 
the right ankle and right knee are secondarily related to his 
service-connected left knee and left ankle disabilities.  
Thus, the medical opinion should address this matter, as 
well.

Accordingly, the case is REMANDED for the following action:

1.  Send the veteran notice of the 
information and evidence necessary to 
substantiate his service connection claims 
for a right ankle disability and right 
knee disability, secondary to his service-
connected disabilities of the left ankle 
and left knee.

2.  Schedule the veteran for a VA 
orthopedic examination to determine the 
following: 

(a)  Whether there is medical evidence of 
a pre-existing disability in the feet; and 
if so, whether this disability was 
aggravated in service beyond its natural 
progress. 

(b)  If there is no evidence of a pre-
existing bilateral foot disability, 
whether the veteran's complaints of 
chronic bilateral foot pain and present 
diagnoses of osteoarthritis and/or plantar 
fasciitis of the feet are at least as 
likely as not related to his history of 
parachute jumping in service.  

(c)  Whether the veteran's present 
diagnoses of calcific olecranon bursitis 
and degenerative changes of the left elbow 
are at least as likely as not related to 
his history of wrestling in service.

(d)  Whether there is medical evidence of 
a pre-existing disability in the right 
ankle; and if so, whether this disability 
was aggravated in service beyond its 
natural progress.

(e)  If there is no evidence of a pre-
existing right ankle disability, whether 
the veteran's present diagnosis of 
degenerative changes of the right ankle 
and hind foot is at least as likely as not 
related to his history of parachute jumps 
in service; or is proximately due to or 
aggravated by the service-connected left 
ankle and left knee disabilities. 

(f)  Whether the veteran's present 
diagnoses of chondromalacia patellae and 
moderately marked degenerative arthritic 
changes of the right knee are at least as 
likely as not related to his history of 
parachute jumps in service; or are 
proximately due to or aggravated by the 
service-connected left ankle and left knee 
disabilities. 

The claims file should be made available 
to and be reviewed by the examiner in 
conjunction with the examination.  A 
complete rationale for all opinions 
expressed should be provided.

4.  Any additional development deemed 
appropriate should be accomplished.  The 
claims should then be readjudicated.  If 
any of the claims remain denied, issue a 
supplemental statement of the case (SSOC) 
containing notice of all relevant actions 
taken on the claims, to include a summary 
of the evidence and applicable law and 
regulations considered pertinent to the 
issues currently on appeal.  An 
appropriate period of time should be 
allowed for response.

The appellant has the right to submit additional evidence and 
argument on the 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. 2007).





______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals







 Department of Veterans Affairs