Citation Nr: 1007662 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 06-02 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a back disability. 2. Whether new and material evidence has been received to reopen the claim of service connection for a bilateral foot disability. 3. Entitlement to service connection for a psychiatric disability to include post-traumatic stress disorder (PTSD) and major depression. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In an August 1997 Board decision, the Board determined that new and material evidence had not been submitted to reopen claims of entitlement to service connection for a back disorder and a bilateral foot disorder, to include fracture of the left foot. The Board remanded the issue of service connection for PTSD. In March 2001, the RO again remanded the issue of service connection for PTSD. Thereafter, the Veteran again raised the issues of whether new and material evidence has been received to reopen the claim of service connection for disabilities of the back and feet. In addition, the Veteran sought service connection for major depression, hypertension, and left shoulder disabilities. In a July 2004 rating decision, the RO continued the denial of service connection for PTSD, and also denied the additionally raised issues. The Veteran thereafter perfected an appeal to those newly raised issues. The Board has referred to the issues of service connection for PTSD and service connection for major depression under the broader characterization of service connection for a psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2009). The Veteran's back disability, bilateral foot disability, hypertension and left shoulder disability claims 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. FINDING OF FACT 1. Service connection is in effect for bronchial asthma, which is evaluated as 60 percent disabling, and the Veteran was awarded a total disability rating based on individual unemployability due to service-connected disability as a consequence of the impact of this sole service-connected disability. 2. Resolving all reasonable doubt in the Veteran's favor, PTSD with major depression had its onset in service or is related to his service-connected bronchial asthma. CONCLUSION OF LAW PTSD with major depression was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for PTSD with major depression, which constitutes a complete grant of the Veteran's psychiatric disability claim. As such, no discussion of VA's duty to notify or assist is necessary. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may 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 a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the in-service injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a Veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the Veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Veteran contends that he developed PTSD as a result of stressors experienced during active service. These stressors include several purported experiences. The Veteran stated the following: at a field hospital in Vietnam, he helped to transfer wounded service members and civilians, and he saw persons who had been wounded or killed; in Thailand, he was injured in a jeep crash; he witnessed atrocities, including the beheading of a Vietnamese civilian; he witnessed mistreatment of enemy prisoners; he had close friends who were killed; he was subjected to rocket or mortar attacks and sniper attacks; he served as a convoy driver or guard and saw bodies at the roadside in June 1967; and in Vietnam, he was assigned to help a medical team at a medical facility and claims that he witnessed severely injured individuals. VA medical evidence dated after the Veteran was discharged from service satisfies the first and second elements of a PTSD claim under the criteria of 38 C.F.R. § 3.304(f), because it shows that the Veteran has been diagnosed on multiple occasions as having PTSD as a result of stressful incidents he reportedly experienced during service. He was also diagnosed as having major depression. Having submitted a diagnosis of PTSD and medical evidence linking PTSD to claimed in-service stressors, the Board must now determine whether the record contains credible supporting evidence that any of the claimed in-service stressors occurred. 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." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat, a determination that is to be made on a case by case basis, requires that the Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (1999). In determining whether a Veteran participated in combat, the Veteran's oral and written testimony will be weighed together with the other evidence of record. Cohen v. Brown, 10 Vet. App. 128, 146 (1997). If VA determines that a 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); 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 the alleged stressor. Instead, the record must contain evidence that corroborate his testimony or statements. See Zarycki, 6 Vet. App. at 98. Where a determination is made that the Veteran did not "engage in combat with the enemy," or that the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki, 6 Vet. App. at 98 (1993). In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994), the Court stated that "the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the Board of its obligations to assess the credibility and probative value of the other evidence." As noted, in a precedent opinion, VA's General Counsel held that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a Veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99. The General Counsel also indicated that the determination of whether a Veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a Veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that the Veteran did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that the Veteran did not engage in combat. Id. In this case, although the Veteran has claimed combat service and told some medical examiners that he had combat service, there is no evidence currently in the claims file that establishes the Veteran's participation in combat. Since the Veteran did not engage in combat with the enemy, his stressor cannot be related to combat. Moreover, his allegations with regard to stressors alone are not enough to establish the occurrence of a stressor. Rather, the record must contain service records or other corroborative evidence that substantiates or verifies the Veteran's statements as to the occurrence of the claimed stressor. As noted, in Doran, the Court stated that "the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the Board of its obligations to assess the credibility and probative value of the other evidence." In the three previously noted cases, the Court cited a provision of the VA ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL 21-1), which has now been revised as to "Evidence of Stressors in Service" to read, in part, ... "[C]orroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources." Since the MANUAL 21-1 October 1995 revision, the Court has held that the requirement in 38 C.F.R. § 3.304(f) for "credible supporting evidence means that the appellant's testimony, by itself, cannot establish the occurrence of a noncombat stressor." See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). A request for stressor verification was made of the U.S. Army and Joint Services Records Research Center (JSSRC). The JSSRC was unable to confirm the claimed stressors. The Veteran also provided the names of two individuals who he indicated were friends who were killed; however, one person by the stated name was killed prior to his service. The other name was incomplete and although the JSSRC confirmed that persons with the last name provided by the Veteran were killed, the Veteran did not know the first name of the individual who served with him. However, the service treatment records confirm that the Veteran was involved in a jeep accident in April 1968 and injured his leg at that time. The Veteran reported that the jeep accident was a stressor to several medical professionals and their diagnoses of PTSD and major depression were based, at least in part, on the stated stressors, including the jeep accident. See VA medical reports dated in August 1995, March 1998, and January 1995. The sufficiency of a stressors is a medical determination; thus the examiners were competent to state that it was one of the underlying bases for the diagnosis. Cohen. Thus, there is corroborating evidence that the Veteran was in a jeep accident during service. Therefore, this stressor has been verified. The Board notes that corroboration of every detail of a claimed stressor is not required; credible independent evidence that the incident occurred is sufficient. See Pentecost v. Principi, 16 Vet. App. 124 (2002). The Board is mindful of the lack of any verification for the majority of the claimed stressors; however, the pertinent diagnoses were based in part on the verified stressor and the Board finds that sufficient. Further, an August 2009 diagnosis offered by the VA examiner, who indicated on Axis III that the Veteran's major depressive disorder was related in part to his service-connected bronchial asthma. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Accordingly, service connection for PTSD with major depression is warranted. ORDER Service connection for PTSD with major depression is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. During the course of this appeal, the Veteran was not provided a notice letter informing him of the basis of the Board's August 2007 prior denials of service connection for back and bilateral foot disability, and the evidence needed to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). As such, these issues must be remanded. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id. The record before VA need only (1) contain evidence that the Veteran has persistent or recurrent symptoms of current disability and (2) indicate that those symptoms may be associated with the Veteran's active military service. Duenas v. Principi, 18 Vet. App. 512 (2004). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410, 418 (2006). As to his hypertension, the service treatment records reflect that the Veteran reported having high or low blood pressure on his separation examination in May 1968. He has a current diagnosis of hypertension. He has provided lay evidence of continuity. Thus, the evidence suggests a possible association with service. Davidson. With regard to a left shoulder disability, the service treatment records do not document a left shoulder injury. However, he has a post-service diagnosis of trapezial sprain and repeated complaints of pain. The Court has specifically indicated that lay evidence may establish the existence of a current disorder capable of lay observation, to specifically include varicose veins, tinnitus, and flat feet. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); and Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Federal Circuit)has also determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Federal Circuit further stated in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In this case, there is a post-service diagnosis of left shoulder disability and the Veteran has provided lay evidence of continuity of symptoms. He is competent to report pain. However, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, the Veteran should be afforded a VA examination to make this assessment. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Issue the Veteran and his representative a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should explain, what, if any, information and (medical and lay) evidence not previously provided to VA is necessary to substantiate the Veteran's back and bilateral foot disability claims. The letter should indicate which portion of the evidence, if any, is to be provided by the Veteran and which portion, if any, VA will attempt to obtain on his behalf. The letter should also request that the Veteran provide any evidence in his possession that pertains to the claim. The letter must also state the basis of the prior denial (August 1997) and indicate what evidence is necessary to substantiate that element or elements required to establish service connection that were found insufficient. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of hypertension and left shoulder disability. Any indicated tests, including X-rays if indicated, should be accomplished. The examiner should review the claims folder prior to examination. The examiner should provide an opinion as to whether it is at least as likely as not that any current hypertension and left shoulder disability had their clinical onset during service or is related to any in-service disease, event, or injury. In addition, the examiner should indicate if hypertension was manifest in the initial post-service year. The examiner should provide a complete rationale for all opinions expressed and conclusions reached, and should comment on the May 1968 separation examination. 3. Then readjudicate the Veteran's claims. If the benefit sought on appeal is not granted, the RO should issue an SSOC and provide the veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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. 2009). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs