Citation Nr: 1003255 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 07-31 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for postoperative residuals of laryngeal polyps. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1984 to January 1985 and from March 2003 to June 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which, in part, denied service connection for PTSD and residuals of laryngeal polyps. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. Issue not on appeal In the above mentioned August 2005 rating decision, the RO also granted service connection for degenerative changes of the lumbar spine. A 20 percent disability rating was assigned. While the Veteran indicated her disagreement with the assigned disability rating, she did not perfect an appeal. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. REMAND The Veteran is seeking entitlement to service connection for postoperative residuals of laryngeal polyps and an acquired psychiatric disability, to include PTSD. After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further evidentiary development. Reasons for remand Laryngeal polyps The Veteran's service treatment records indicate that she complained of a sore throat in April 2003 and February 2004. In May 2003 the Veteran indicated that she was having difficulty swallowing. In September 2004, three months after separating from service, the Veteran sought treatment for complaints of hoarseness. She was diagnosed with a right vocal chord lesion in October 2004 and underwent surgery to remove laryngeal polyps in November 2004. Under these circumstances, a medical nexus opinion must be obtained. See Charles v. Principi, 16 Vet. App. 370 (2002) [where there is evidence of record satisfying the first two requirements for service connection (current disability and in-service disease or injury), but no competent medical evidence addressing the third requirement (a nexus between the current disability and active service), VA must obtain a medical nexus opinion]; see also 38 C.F.R. § 3.159(c)(4) (2006) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Acquired psychiatric disorder Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In this case the Veteran has been diagnosed with PTSD, an anxiety disorder, depression, and a nightmare disorder. The Veteran has indicated that her military living quarters were infested with rats and she feared they would bite her. See a December 2004 VA psychiatrist consult. Additionally, the Veteran indicated in her 2004 post-deployment physical that she felt that she was in great danger of being killed. McLendon elements (1) and (2) have therefore been met. The Court has held that credible evidence of continuity of symptomatology capable of lay observation is enough to satisfy the "low threshold" requirement that a disability "may be associated" with service. See McLendon, supra. In this case the Board finds the Veteran's complaints of ongoing difficulty sleeping and nightmares about rats sufficient to satisfy the "low threshold" requirement that a disability "may be associated" with service. McLendon element (3) has therefore been satisfied. With respect to McLendon element (4), this case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These questions concern whether the Veteran has a current psychiatric disability and, if so, whether such a disability is related to her military service. Accordingly, McLendon element (4), and therefore all elements, has been met. PTSD Service connection for PTSD requires that three elements be met: (1) medical evidence diagnosing PTSD; (2) combat status or credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressors. See 38 C.F.R. § 3.304(f) (2009). The medical evidence of record indicates that the Veteran has been diagnosed with PTSD. See a March 2006 VA outpatient treatment record. In her October 2007 substantive appeal, the Veteran stated that she participated in combat and came under fire from small arms and rocket propelled grenades (RPG). In addition, the Veteran has stated that her military living quarters were infested with rats and she feared that they would bite her. With respect to the Veteran's statement that she came under fire from small arms and RPGs, she has not provided basic specifics, such as the unit involved, the location or an approximate date of the attack. As such, the lack of detail provided by the Veteran makes verification of this stressor impossible. With respect to the Veteran's claim that her military living quarters were infested with rats such that she was worried that they would bite her, the Board notes that this stressor is not the type of event that would have been documented by the U.S. Army and Joint Services Records Research Center (JSRRC). The Veteran has not submitted any statements in support of her claim from individuals who lived with her or who knew of the infestation. In sum, the Veteran has reported two unverified stressors from service. The Veteran's statements alone cannot serve as a basis for the grant of service connection for PTSD. On remand, the Veteran should be provided the opportunity to submit any additional information she deems relevant to establishing any claimed stressors. If any newly received information regarding any additional claimed stressors is sufficiently specific, the RO should request verification from the U.S. Army and Joint Services Records Research Center (JSRRC). Accordingly, the case is REMANDED for the following action: 1. VBA should contact the Veteran and ask that she provide more detail concerning the stressor incidents that involve combat including her exposure to gunfire and rocket propelled grenades. That is, she should indicate, as specifically as possible, the dates, locations, military units and persons involved in each stressful incident. The Veteran should also be requested to provide objective supporting evidence of her exposure to rat infested military living quarters, to include corroborating statements by comrades who witnessed the rat infestation of her military living quarters. 2. If, and only if, sufficient information capable of verification is provided by the Veteran concerning her claimed stressors, VBA should then contact the U.S. Army & Joint Services Records Research Center (formerly known as USASCRUR) and ask that organization to attempt to verify these additional stressor(s). 3. VBA should schedule the Veteran for an examination with an appropriate medical specialist for the purpose of determining the nature and etiology of all current psychiatric disorders. The Veteran's VA claims folder, including a copy of this remand, must be made available to the examiner. The examiner should either diagnose PTSD, or rule it out as a diagnosis. All diagnostic testing deemed to be necessary by the examiner should be accomplished. If the examiner determines that the Veteran suffers from a psychiatric disorder, he/she should state whether it is at least as likely as not (e.g. a 50/50 probability) that the Veteran's disability is related to her military service. If PTSD is diagnosed, the examiner must identify the stressor deemed verified by VA which serves as the basis for the PTSD diagnosis. A report of the examination should be prepared and associated with the Veteran's VA claims folder. 4. VBA should arrange for an appropriate clinician to review the Veteran's VA claims folder and provide an opinion, with supporting rationale, as to whether the Veteran has residual disability from removal of vocal cord polyps, to include as manifested by complaints of difficulty swallowing and severe snoring, and whether such residual disability is related to her military service. If the reviewing clinician finds that physical examination of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A report should be prepared and associated with the Veteran's VA claims folder. 5. After taking any further action it deems necessary, VBA should then readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, VBA should provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).