Citation Nr: 1120867	
Decision Date: 05/31/11    Archive Date: 06/06/11

DOCKET NO.  07-34 942	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a cardiac disability, to include ischemic heart disease.

2.  Entitlement to service connection for a colon disability.

3.  Entitlement to service connection for a psychiatric disability, to include depression not otherwise specified and posttraumatic stress disorder (PTSD).

4.  Entitlement to service connection for a sleep disability.

5.  Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1969 to April 1971, including service in the Republic of Vietnam.  He also served with the Army National Guard from November 1972 to May 1994.  He received the Army Commendation Medal.

These matters come before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  In that decision, the RO denied entitlement to service connection for coronary artery disease, colon polyps, PTSD, sleep apnea, and hypertension.

In January 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO and a transcript of that hearing has been associated with his claims folder.

Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2010) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


The Veteran is in receipt of Social Security Administration (SSA) disability benefits for cardiac and psychiatric disabilities and he reported on his application for such benefits that he stopped working in May 2004 due to such problems.  The Board is granting service connection for a cardiac disability and PTSD.  Thus, the issue of entitlement to a TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issues of entitlement to service connection for a sleep disability and hypertension 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 Veteran served in Vietnam during the Vietnam War era.

2.  The Veteran has been diagnosed as having ischemic heart disease, which is present to a compensable degree.

3.  The Veteran's colon disability is not the result of an in-service disease or injury.

4.  The Veteran received a PTSD diagnosis by a VA psychologist based upon reports of stressful experiences involving fear of hostile military activity consistent with the circumstances of his service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a cardiac disability, namely ischemic heart disease, are met.  38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 4.104, Diagnostic Codes (DCs) 7005, 7006 (2010); 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010).   

2.  The criteria for service connection for a colon disability are not met.  38 U.S.C.A. §§ 1110, 1113(b), 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309(e).

3.  The criteria for service connection for a psychiatric disability, namely PTSD, have been met.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304(f) (2010); 75 Fed. Reg. 39843 (July 13, 2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 as amended (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. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  

As the Board is granting the claims for service connection for cardiac and psychiatric disabilities, the claims are substantiated, and there are no further VCAA duties as to those issues.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 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"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (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).

As for the claim for service connection for a colon disability, under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a pre-adjudication letter dated in October 2005, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection for a colon disability.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  Nevertheless, the October 2005 letter complied with this requirement.  

The Veteran has substantiated his status as a Veteran.  He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claims, in a pre-adjudication letter dated in March 2006.  
  
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2010) impose two distinct duties on VA employees in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  At the Veteran's January 2009 hearing, the DRO identified the issues on appeal and suggested that the Veteran submit evidence (including a medical opinion) showing a nexus between his diagnosed colon disability and service.  The duties imposed by Bryant were thereby met.

VA obtained the Veteran's service treatment records, pertinent service personnel records, SSA disability records, and all of the identified post-service VA treatment records and private medical records.  

VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for finding a link between current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.  

The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon, 20 Vet. App. at 83.   There must; however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

The Veteran was not afforded a VA examination for a colon disability.  As discussed below, there is no competent evidence that the Veteran's current colon disability may be related to a disease or injury in service. The Veteran has asserted that his current colon disability is the result of gastrointestinal symptoms, including constipation, in service.  He has not reported any in-service colon disease, or a continuity of symptomatology, and there is no other competent medical or lay evidence that the Veteran's current colon disability may be related to service.  The Veteran's assertion that his in-service symptoms caused the colon problems shown after service is insufficient to trigger VA's duty to provide an examination.  Id.  A VA examination is therefore not necessary.  See McLendon, 20 Vet. App. at 83.

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides.  38 C.F.R. §§ 3.307, 3.309.

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).

Effective August 31, 2010, VA amended the regulatory provisions governing service connection on a presumptive basis due to exposure to herbicides.  Specifically, the final rule amends 38 C.F.R. § 3.309(e) by adding, among other disabilities, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina).  See 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010).   

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).

Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).



Cardiac Disease

Medical records, including a May 2006 VA agent orange examination report, reveal that the Veteran has been diagnosed as having ischemic heart disease, to include coronary artery disease.  His medical records further indicate that he has a history of a myocardial infarction and has experienced numerous cardiac symptoms over the years (e.g. chest pain, palpitations, shortness of breath), and has history of medication use for his cardiac disability.  Thus, the Veteran's ischemic heart disease has clearly become manifest to a degree of 10 percent or more since service.  See 38 C.F.R. § 4.104, DCs 7005, 7006.

As the Veteran served in Vietnam he is presumed to have been exposed to herbicides, including Agent Orange.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307.  He has been diagnosed as having ischemic heart disease, which manifests to a degree of 10 percent or more.  Service connection for a cardiac disability, diagnosed as ischemic heart disease, is granted on a presumptive basis.  38 U.S.C.A. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e).

Colon Disability

Medical records, including an April 2005 examination report from Kershaw County Medical Center (Kershaw), reveal that the Veteran has been diagnosed as having colon polyps.  Thus, a current colon disability has been demonstrated.

As the Veteran's currently diagnosed colon disability is not a condition listed in 38 C.F.R. § 3.309(e), presumptive service connection on the basis of his exposure to herbicides is not warranted.  38 C.F.R. § 3.309(e); see also 68 Fed. Reg. 27,630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted).

During the January 2009 hearing, the Veteran alluded to the fact that he experienced gastrointestinal problems (e.g. constipation) in service in that he testified that he used the bathroom only twice in approximately 7 months while serving in Vietnam due to the constant threat of enemy attacks.  He is competent to report such gastrointestinal symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)

Furthermore, there is nothing to explicitly contradict his reports and they are otherwise consistent with the evidence of record.  Thus, the Board concludes that his reports are also credible.

Where, a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service.  38 U.S.C.A. § 1154(b) (West 2002).  Competent evidence of a current disability and of a nexus between service and a current disability is still required; however.  Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996).  

The Veteran has not reported a colon injury or disability in service.  There is no evidence of any complaints of, or treatment for, colon problems in the Veteran's service treatment records and his April 1971 separation examination was normal.

The evidence does not reflect, and the Veteran has not reported, a continuity of symptomatology.  The first post-service clinical evidence of a colon disability is a June 2004 surgical pathology report from Providence Hospital which indicates that an ascending colon mucosal biopsy revealed fragments of necroinflammatory debris and granulation tissue consistent with clinical ulceration and multiple fragments of benign colonic mucosa with mild acute nonspecific colitis.

The absence of complaints of or treatment for colon problems for decades after service weighs the evidence against a finding that the Veteran's colon disability was present in service or in the year or years immediately after service.  Maxson v. Gober, 230 F.3d 1330 (2000).

The Veteran has expressed his belief that the current colon disability is related to in-service gastrointestinal problems.  However, as a lay person, the Veteran lacks the expertise to say that his current colon disability was caused by the in-service gastrointestinal problems, as opposed to some other cause.  It would require medical expertise to evaluate the colon disability, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence.  38 C.F.R. § 3.159(a)(1), (2) (2010).

Although the Veteran has received treatment by medical professionals for a colon disability, none have attributed this disability to in-service gastrointestinal problems, herbicide exposure, or any other disease or injury in service.

There is no other evidence of a relationship between the Veteran's current colon disability and service and neither the Veteran nor his representative has alluded to the existence of any such evidence.  

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt doctrine is not applicable and the claim for service connection for a colon disability must be denied.  See 38 U.S.C.A. 
§ 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.

Psychiatric Disability

Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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.  If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f) (2010); see Cohen v. Brown, 10 Vet. App. 128 (1997); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

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).  The Court has held that receiving enemy fire or firing on an enemy can constitute participation in combat.  Sizemore v. Principi, 18 Vet. App. 264 (2004).  

Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  See 75 Fed. Reg. 39843 (July 13, 2010).
 
Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: 

(f)(3)  If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.
Id. at 39852.

An April 2008 VA examination report reveals that the Veteran has been diagnosed as having PTSD.  Thus, a current psychiatric disability has been demonstrated.
Furthermore, the April 2008 VA examination report establishes a link between his PTSD and an in-service combat stressor.  For example, the Veteran has reported on several occasions, including during the April 2008 VA examination, that when he first arrived at Cam Ranh Bay, Vietnam in October 1970 a "code red" was initiated because of incoming enemy fire.  The plane on which he was arriving could not land for approximately 30 to 45 minutes and he was rushed into a bunker after exiting the plane.  

The VA licensed clinical psychologist who conducted the April 2008 VA examination diagnosed the Veteran as having PTSD and opined that his PTSD symptoms were likely "at least as likely as not" related to his reported combat experiences.  This opinion was based on the Veteran's reported in-service stressor and PTSD symptoms and the fact that he was being treated at VA for PTSD at the time of the examination.

The April 2008 opinion is accompanied by a rationale which is consistent with the evidence of record and based on the Veteran's reported history.  The opinion, therefore, is entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

Thus, a VA psychologist has diagnosed the Veteran as having PTSD and provided an opinion that a nexus exists between his PTSD symptoms and a claimed in-service combat stressor.  The only remaining questions in this case are whether the evidence supports a finding that the Veteran engaged in combat, or whether there is credible supporting evidence that the claimed stressor occurred.  

The Veteran's DD 214 and service personnel records reflect that his military occupational specialty (MOS) was a field wireman, that he served in Vietnam from October 1970 to April 1971 with Company B, 815th Engineer Battalion, and that he earned the Army Commendation Medal while in Vietnam for meritorious service and the Marksman (M-16) badge.  Furthermore, an August 1993 report of medical history for purposes of an "over 40" physical examination reveals that he reported that he experienced bed wetting in Vietnam due to fear.

The Board finds this evidence probative in placing the Veteran in the vicinity of potentially hostile military activity.  The Veteran has reported several in-service combat stressors while serving in Vietnam, including the one reported during the April 2008 VA examination that served as the basis for the VA psychologist's diagnosis of PTSD.  The Board considers this reported stressor to be interrelated to fear of hostile military activity. 

In light of the Veteran's current diagnosis of PTSD, his military records reflecting service in Vietnam, and his August 1993 report of bed wetting in Vietnam due to fear, the Board finds the Veteran's claimed stressor of landing in Vietnam in October 1970 amid incoming enemy fire meets the expanded lay evidence requirements under the amended regulations.  75 Fed. Reg. 39843 (July 13, 2010).  The amended regulations allow a non-combat veteran to substantiate their PTSD claim based upon lay evidence concerning fear of hostile military activity consistent with the places, types, and circumstances of service.  See Id.  

In sum, the evidence meets the criteria of the amended 38 C.F.R. § 3.304(f), governing service connection PTSD claims for non-combat Veterans.  38 C.F.R. § 3.304(f); 75 Fed. Reg. 39843 (July 13, 2010).  Resolving all reasonable doubt in the Veteran's favor, the claim for service connection for PTSD is granted. 


ORDER

Entitlement to service connection for a cardiac disability, namely ischemic heart disease, is granted.

Entitlement to service connection for a colon disability is denied.

Entitlement to service connection for a psychiatric disability, namely PTSD, is granted.


REMAND

VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); McLendon, 20 Vet. App. at 79. The threshold for finding a link between current disability and service is low.  Locklear, 20 Vet. App. at 410; McLendon, 20 Vet. App. at 83.  The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service.  McLendon, 20 Vet. App. at 83.

Service connection is provided for a disability, which is proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2010).  The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995).  VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation.  38 C.F.R. § 3.310(b).  

An August 2005 nocturnal polysomnogram report from Kershaw indicates that the Veteran has been diagnosed as having severe sleep disordered breathing.  Also, medical records, including an April 2005 examination report from Kershaw and August 2005 and March 2006 examination reports from James S. Shaw, M.D., reveal that elevated blood pressure readings were recorded (170/106, 130/90, and 140/90, respectively) and diagnoses of hypertension were provided. 

Furthermore, the Veteran has submitted internet medical articles which state that certain types of sleep apnea are more common in people with cardiac problems and that people with PTSD are more at risk for hypertension.

Thus, there is competent evidence of a current sleep disability and current hypertension that may be related to his now service-connected ischemic heart disease and PTSD, respectively.  VA's duty to obtain examinations as to the etiology of the current sleep disability and hypertension is, therefore, triggered.  Such examinations are needed to obtain medical opinions as to the relationship of the Veteran's current sleep disability and hypertension to service and his now service-connected cardiac disability and PTSD.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the etiology of his current sleep disability.  All indicated tests and studies should be conducted.

The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum.

The examiner should opine as to whether it is at least as
likely as not (50 percent probability or more) that the Veteran's current sleep disability had its onset in service, is related to in-service herbicide exposure, or is otherwise the result of a disease or injury in service.

The examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that the current sleep disability was either caused or aggravated (made worse) by the Veteran's now service-connected ischemic heart disease.

The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  The absence of evidence of treatment for sleep problems in the Veteran's service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  

If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so.

2.  Schedule the Veteran for a VA examination to determine the etiology of his current hypertension.  All indicated tests and studies should be conducted.

The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum.

The examiner should opine as to whether it is at least as
likely as not (50 percent probability or more) that the Veteran's current hypertension had its onset in service or in the year immediately after service, is related to in-service herbicide exposure, or is otherwise the result of a disease or injury in service.

The examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current hypertension was either caused or aggravated by his now service-connected PTSD.

The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  The absence of evidence of treatment for hypertension in the Veteran's service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.

3.  The agency of original jurisdiction (AOJ) should review the examination reports to ensure that they contain the information requested in this remand and are otherwise complete.

4.  If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case.  Thereafter, the case should be returned to the Board, if in order.

The Veteran 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. 2010).




______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs