Citation Nr: 1124241 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 04-10 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disorder to include posttraumatic stress disorder. 2. Entitlement to an initial compensable disability evaluation for the Veteran's service-connected chronic hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from November 1969 to December 1971. The Veteran served in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the New Orleans, Louisiana, Regional Office (RO) which denied service connection for both hepatitis C and posttraumatic stress disorder (PTSD). In June 2007, the Board remanded the Veteran's appeal to the RO for additional action. In December 2009, the Board granted service connection for chronic hepatitis C and remanded the issue of service connection for a chronic acquired psychiatric disorder to the RO for additional action. In February 2010, the Appeals Management Center (AMC) implemented the Board's decision; assigned a noncompensable evaluation for the Veteran's hepatitis C; and effectuated the award as of December 2, 2002. In April 2010, the Veteran submitted a notice of disagreement (NOD) with the initial evaluation assigned for his chronic hepatitis C. The Board observes that the Veteran has appealed from the initial evaluation assigned for his service-connected hepatitis C. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that it was specifically not a claim for an increased disability evaluation. However, the Court did not provided a specific name for the issue in lieu of "increased disability evaluation." In the absence of such direction, the Board has framed the issue as entitlement to an initial compensable disability evaluation for the Veteran's chronic hepatitis C. The Veteran is not prejudiced by such action. The Board has not dismissed any issue and the law and regulations governing the evaluation of disabilities are the same regardless of how the issue is styled. The issue of an initial compensable evaluation for the Veteran's chronic hepatitis C is REMANDED to the RO via the AMC, in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. In November 2010, the Veteran submitted a Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it. The issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran served with the Air Force in the Republic of Vietnam. 2. Multiple VA psychiatrists have diagnosed the Veteran with chronic PTSD secondary to his Vietnam War-related traumatic experiences. CONCLUSION OF LAW Chronic PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.326(a) (2010 as amended). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for chronic PTSD. Such action represents a complete grant of the benefits sought on appeal. Therefore, no discussion of the VA's duty to notify and assist is necessary. The Veteran asserts that he has incurred chronic PTSD as the result of his traumatic experiences while serving with an Air Force reconnaissance squadron in the Republic of Vietnam. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). 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) (2010). The Secretary of the VA has recently amended the provisions of 38 C.F.R. § 3.304 applicable to PTSD claims. This amendment is expressly applicable to all claims pending before the Board on July 13, 2010. The amended regulation directs, in pertinent part, that: Posttraumatic stress disorder. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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. The following provisions apply to claims for service connection of posttraumatic stress disorder diagnosed during service or based on the specified type of claimed stressor: (1) If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, 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. (2) 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. (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 posttraumatic stress disorder 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. 38 C.F.R. § 3.304(f). Personality disorders do not constitute disabilities for which VA compensation benefits may be awarded. 38 C.F.R. §§ 3.303(c), 4.127 (2010). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 2002). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records indicate that he was seen for psychiatric complaints on several occasions. At his August 1969 physical examination for service entrance, the Veteran presented a history of occasional nervousness manifested by fingernail chewing. The examiner noted no psychiatric abnormalities. A June 1970 treatment entry states that the Veteran complained of anxiety associated with his recent "geographic separation" from his wife. He was noted to have threatened to go absent without leave to be with his wife or "to do something drastic." Impressions of adult situational anxiety and "? Sociopathic personality traits" were advanced. A July 1970 treatment entry conveys that the Veteran complained of chronic anxiety. An impression of chronic anxiety was advanced. A July 1970 psychiatric evaluation states that the Veteran was seen for increasing anxiety, excessive worry, insomnia, and loneliness over the preceding month secondary to his physical separation from his wife. He stated that he was afraid that he would go absent without leave or strike an officer. A diagnostic impression of a passive-dependent personality disorder was advanced. A December 1970 evaluation states that the Veteran's "July episode might have been due more to the initial separation from his family and therefore we could clear him for secret access." A January 1971 evaluation states that the Veteran's "personal problems both on and off duty have been solved." He was medically cleared for a security clearance. A July 1971 treatment entry states that "down in Vietnam - [the Veteran was] sweating a lot." An October 1971 treatment record states that the Veteran reported "many difficulties that he has recently been involved with in his squadron." He was reported to have been diagnosed with a passive-dependent personality disorder in September 1971. At his November 1971 physical examination for service separation, the Veteran complained of "nervous trouble;" "trouble sleeping;" and "present problems with [the Air Force] ([absent without leave], letter of reprimand, and control roster)." The Veteran was diagnosed with a passive-dependent personality disorder. A March 2009 written statement from the Air Force Historical Research Agency indicates that the Veteran's unit had been assigned to Cam Ranh Bay, Republic of Vietnam in 1970 and 1971 and "TDYs were conducted into Vietnam on a rotating basis." Much of the documentation pertaining to the Veteran's Air Force unit's service in the Republic of Vietnam was reported to remain classified. Service connection has been established for chronic hepatitis C secondary to the Veteran's service in the Republic of Vietnam. At a February 1972 VA examination for compensation purposes, the Veteran complained of "some anxiety and frustration." The Veteran was diagnosed with a passive-aggressive personality disorder. In April 1972, the RO denied service connection for a passive-aggressive personality disorder. In his November 2002 claim for service connection, the Veteran reported that he had initially manifested chronic PTSD in July 1985. He stated that he had received ongoing VA PTSD treatment since November 2002. In his November 2002 Information in Support of Claim for Service Connection for PTSD, the Veteran related that he served with an Air Force reconnaissance squadron associated with the 347th Combat Support Group from May 1971 to November 1971; was stationed at the Cam Ranh Bay, Saigon, and Danang, Republic of Vietnam, air bases; and experienced stressful events including working on flight lines and removing wounded and dead servicemen from incoming aircraft. A January 2002 VA mental health clinic treatment entry notes that the Veteran presented PTSD symptoms. The Veteran was diagnosed with "[ruleout] PTSD." An August 2002 VA PTSD intake report states that the Veteran complained of anger and sleep disturbances. He presented a history of having served with the Air Force in the Republic of Vietnam where he performed flight line aircraft maintenance. The Veteran clarified that he had handled bodies while in Vietnam and a friend had drowned in a swimming incident while they were stationed at Cam Ranh Bay. The Veteran was diagnosed with mild chronic PTSD. The examining psychology technician commented that: He meets marginally diagnostic criteria for PTSD manifested as intrusive memories of traumatic events and nightmares rehearsing such themes, heightened physiological arousal triggered by stimuli reminiscent of the trauma, cognitive and behavioral avoidance symptoms, emotional numbing, sleep disturbance, and low thresholds for irritability. He reported a number of traumatic experiences, e.g., handling bodies in Vietnam, witnessing the drowning of a friend in a swimming incident in Vietnam, observing the deaths of others in the community, and symptoms of PTSD are associated with these multiple stressors, including combat-related experiences. A January 2003 VA mental health clinic treatment record notes that the Veteran complained of chronic sleep impairment after the diagnosis of his chronic hepatitis C in approximately 1994. Assessments of insomnia and "[ruleout] anxiety disorder, [not otherwise specified]" were advanced. Clinical documentation from Tulane University Hospital dated in March 2003 relates that the Veteran had "PTSD from Vietnam [era]." VA mental health clinic clinical documentation dated in April 2003 notes that a VA clinical psychologist diagnosed the Veteran with PTSD. In a July 2003 written statement, the Veteran clarified that while he performed TDYs in the Republic of Vietnam during 1971, he worked on flight lines; performed duties which included "handling of war dead + wounded;" and a fellow serviceman had drowned while swimming at the Cam Ranh Bay, Vietnam, facility. VA psychiatric treatment records dated in September 2003, January 2004, and March 2004 state that the Veteran was diagnosed by his treating VA psychiatrist with chronic PTSD. In his March 2004 Appeal to the Board (VA Form 9), the Veteran related that he had served in "a reconnaissance squad[ron]" in the Republic of Vietnam which was classified as a secret or top secret mission. He stated that he "went TDY from Yokota Air Force Base." In a June 2005 written statement, the Veteran clarified that he had wrapped "dead bodies in the morgue" while in the Republic of Vietnam and sustained chronic hepatitis C from such activities. A June 2008 VA psychiatric evaluation indicates that the Veteran complained of almost nightly Vietnam War-related nightmares; anxiety; occasional nervousness; irritability; impaired sleep; and excess worry manifested by nightly perimeter checks and taking weapons to bed. He reported that he had served with an Air Force reconnaissance squad in the Republic of Vietnam. His military duties included unloading bodies and taking them to the morgue. The treating VA psychiatrist noted that: [The Veteran] meets DSM-IV criteria for PTSD: combat trauma. In addition to noncombat trauma (witnessed his friend drown in the seas. At a June 2009 VA psychological examination for compensation purposes, the Veteran presented a history of having served in the Republic of Vietnam. While in Vietnam, he repaired aircraft; unloaded bodies from aircraft and took them to the morgue; and came under enemy mortar and rocket attack. The Veteran's prior VA PTSD diagnoses were noted. The Veteran was diagnosed with a not otherwise specified personality disorder with passive-aggressive traits. No Axis I diagnosis was advanced. The examiner commented that: The Veteran's 2507 form indicates that I should state whether verified stressors are sufficient to produce a PTSD diagnosis. I did not see any verified stressors nor does the Veteran report full criteria for exposure for PTSD. This makes the first opinion request irrelevant. The 2507 form also requested that I state whether there is a link between the Veteran's current reported symptoms and verified stressors. Again, I am not giving any formal diagnosis on AXIS I, therefore, the second question is irrelevant as well. While the Veteran did have some depressive and anxious symptoms right after Hurricane Katrina, these have improved. Also, while he does report some PTSD symptoms, he also indicates that those have improved and he does not meet the full criteria for this diagnosis at this point. While he has been previously diagnosed with PTSD, I do not see the criteria for this diagnosis today, and I did not see sufficient evidence to confirm traumatic stressors in support of a PTSD diagnosis. At an April 2010 VA psychological examination for compensation purposes, the Veteran presented a history of having served in the Republic of Vietnam. The Veteran's prior VA PTSD diagnoses were noted. The Veteran was diagnosed with a not otherwise specified personality disorder with passive-aggressive personality features. The examiner commented that: Results conclude that the Veteran's psychiatric symptomatology does not warrant a chronic Axis I diagnosis, rather an Axis II diagnosis of personality disorder, not otherwise specified, with passive-aggressive traits. This was the diagnosis which was first established while in service. It is this examiner's opinion that the Veteran's personality traits are at least as likely as not (i.e., probability of 50 percent) etiologically related to the Veteran's inservice psychiatric complaints, service in the Republic of Vietnam, and/or active service in general. The Veteran reports difficulties with twice weekly nightmares which he mostly has no clear recollection of their content. ... The Veteran primarily focused on his Hepatitis C and economic stressors from loss of job approximately three years ago. Although the Veteran does exhibit some PTSD-like symptoms, he does not meet the full criteria for PTSD. I am in agreement with the previous examiner that while he has been previously diagnosed with PTSD, there does not appear to be sufficient evidence to confirm traumatic stressors in support of a PTSD diagnosis. His worry and concern over his hepatitis C and economic stressors appear to not exceed beyond any expected normal response to these stressors. An August 2010 VA psychiatric evaluation notes that the Veteran complained of Vietnam War-related nightmares three to four times as week; progressively worsening depression and anxiety; a loss of motivation and energy; trouble concentrating; impaired sleep; and chronic hepatitis C. He was noted to have served in the Republic of Vietnam. His military duties included removing wounded and dead soldiers. The treating psychiatrist advanced impressions of "PTSD, chronic, mild, related to Vietnam;" "depressive disorder not otherwise specified; "an anxiety state, related to hepatitis C;" and "Axis II deferred." The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal. The Veteran asserts that service connection for chronic PTSD is warranted secondary to his traumatic experiences while in the Republic of Vietnam. The Veteran served with the Air Force at Cam Ranh Bay and other sites in the Republic of Vietnam. The Board finds that his statements as to his claimed inservice stressful experiences to be both consistent with such service and credible. The Veteran has been repeatedly diagnosed with chronic PTSD in accordance with DSM-IV secondary to his Vietnam War experiences by his treating VA psychiatrists. The Board acknowledges that the VA psychologists conducting the June 2009 and April 2010 VA examination for compensation purposes determined that the Veteran did not meet the criteria of a diagnosis of PTSD; advanced no Axis I diagnosis (clinical disorders, including major mental disorders, and learning disorders); and instead diagnosed the Veteran with a not otherwise specified personality disorder with passive-aggressive traits/features. Both psychologists put significant weight upon the absence of sufficiently verified stressors. The verification of the Veteran's claimed stressors was hindered by the classified status of the relevant Air Force unit records. Such verification is now of lesser importance given the recent amendment of 38 C.F.R. § 3.304. As to the prior VA diagnoses of PTSD, the psychologists simply noted that such diagnoses were not supported by their own findings. No deficiencies in the prior diagnoses were specifically identified. The Board observes that the VA psychiatrists advanced diagnoses of Vietnam War-related PTSD both prior to and after the June 2009 and April 2010 psychological evaluations. This fact clearly establishes the continuity of the Veteran's PTSD and thereby lessens the probative value of the psychological evaluations. The evaluations clearly do not constitute clear and convincing evidence to negate the multiple VA PTSD diagnoses of record. In light of the VA psychiatrists' diagnoses of Vietnam War-related PTSD and given the absence of clear and convincing evidence to the contrary, the Board finds that service connection for chronic PTSD is now warranted. ORDER Service connection for chronic PTSD is granted. REMAND The Veteran has submitted a timely NOD with the initial evaluation assigned for his chronic hepatitis C. The Court has directed that where a veteran has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a statement of the case (SOC) addressing the issue, the Board should remand the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: Issue a SOC to the Veteran and his accredited representative which addresses the issue of the initial evaluation of the Veteran's chronic hepatitis C. The Veteran should be given the appropriate opportunity to respond to the SOC. The Veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs