Citation Nr: 1126733	
Decision Date: 07/18/11    Archive Date: 07/21/11

DOCKET NO.  09-31 880	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for syncope vasovagal, claimed as a neurological disorder, including migraines.

2.  Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel




INTRODUCTION

The Veteran had active service from August 1961 to August 1965.

These claims come before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

In January 2011, the Board reopened the Veteran's claim for entitlement to service connection for PTSD.  The reopened claim and the claim for entitlement to service connection for syncope vasovagal were remanded for further development

The Board has recharacterized the issue of service connection for PTSD under the broader characterization of service connection for a psychiatric disorder.  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) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for syncope vasovagal claimed as a neurological disorder, including migraines, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, PTSD and depressive disorder had their onset in service.




CONCLUSION OF LAW

PTSD and depressive disorder were incurred in active service.  38 U.S.C.A. 
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

Given the Board's favorable disposition to grant the claim for service connection for PTSD and depressive disorder, the Board finds that no discussion of VCAA compliance is necessary at this time.

Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999).

The Board has reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (under the criteria of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV), a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 4.125 (2009).

VA considers diagnoses of mental disorders in accordance with the DSM-IV. 38 C.F.R. § 4.125 (2009).  The DSM-IV criteria for a diagnosis of posttraumatic stress disorder include:  A) exposure to a traumatic event; B) the traumatic event is persistently experienced in one or more ways; C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness is indicated by at least three of seven symptoms; D) persistent symptoms of increased arousal are reflected by at least two of five symptoms; E) the duration of the disturbance must be more than one month; and F) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.  ICD-9 Code 309.81.

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 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) (2009); 38 U.S.C.A. § 1154(b) (West 2002).

Effective July 13, 2010, VA amended 38 C.F.R. § 3.304 governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressors.  The rule now provides that 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 the veteran's symptoms are related to the claimed stressors, 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 stressors.  38 C.F.R. § 3.304(f)(3) (2010).

The Veteran claims that he developed PTSD secondary to three in-service stressors, two of which are verified, at least in part.  These two stressors took place while the Veteran was serving at Plattsburgh Air Force base from March 1961 to May 1964, including during the Cuban Missile Crisis, as a member of the 820th Medical Group.  He contends that in September 1962, a B-52 crash-landed at his base while he was on duty.  He also contends that, during a firing exercise, a missile was mistakenly armed to fire.  At that moment, he realized he could die.

An in-service report of evaluation confirms that the Veteran's in-service duties as of August 1963 included covering missile sites, a fact that verifies, at least in part, the latter alleged stressor.  Moreover, internet articles refer to the B-52 crash and confirm that it occurred in September 1962 at Plattsburgh Air Force, as alleged.  

The Veteran underwent a VA psychiatric examination in February 2011 and the diagnoses included PTSD, major depression and delusional disorder.  The Veteran denied receiving any psychiatric care prior to or during his military service.  He reported that he was stationed at Plattsburgh AFB which contained missile sites during the Cuban Missile Crisis.  He indicated that when "atomic warfare talk began" there was an atmosphere of constant fear on the base.  He also indicated that one occasion during a training exercise, the missiles were armed accidentally and this caused him tremendous fear.  While the Veteran did not report this at the examination, the examiner noted the Veteran's claim of witnessing the collision of a B-52 with another aircraft.

The examiner noted that while the Veteran did not report a mental illness prior to his experiences in the military, he did not provide enough historical background information to substantiate or rule out a pre-existing mental illness.  The examiner stated that while it appeared difficult for the Veteran to report accurately about his symptoms due to his circumstantial thinking and delusional thought process, it was unclear if his mental illness was present before the military or if his entrance into the stressful environment of the military precipitated his symptoms.  The examiner felt that while many of the symptoms associated with the Veteran's PTSD and depression diagnosis are as likely as not a result of his military service, due to the shared symptomatology of these various disorders, the examiner would have to resort to speculation to determine which symptoms are attributable to which diagnosis.      

Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's psychiatric disorders of PTSD and depressive disorder began during or is a result of active service.  While the February 2011 VA examiner speculated that a mental illness might have been present before the Veteran's entry into the active service, there is no evidence is the claims folder to substantiate this.  Also, the Veteran specifically denied receiving any psychiatric treatment prior to service.  Moreover, while the examiner could not attribute which symptoms were attributable to PTSD as opposed to depressive disorder, the ultimate conclusion indicated that both the Veteran's PTSD and major depression were a result of his military service.  Accordingly, by extending the benefit of the doubt to the Veteran, service connection is warranted for PTSD and depressive disorder.   

On the other hand, the Board finds that service connection is not warranted for the  delusional disorder.  The evidence does not show that this disorder was diagnosed during the Veteran's service or within one year of service.  The Veteran was not diagnosed with a delusional disorder until many years following discharge from service.  Such a lapse of time is a factor for consideration in deciding a service connection claim.  Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000).  Moreover, the examiner did not relate the Veteran's delusional disorder to service or any incident thereof.

In conclusion, the Board finds the evidence to be at least in a state of relative equipoise in showing that the Veteran currently has PTSD and depressive disorder that were as likely as not incurred in or aggravated by active service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Accordingly, by extending the benefit of the doubt to the Veteran, service connection is warranted.  


ORDER

Service connection for psychiatric disorder, currently diagnosed as PTSD and a depressive disorder, is granted.


REMAND

The Board's review of the claims file reveals that further action on the claim of service connection for syncope vasovagal, claimed as neurological disorder, is warranted.

The Veteran claims that he has a neurological disorder manifested by migraine headaches which first developed during service as syncope, vasovagal.  The service treatment records establish the Veteran's reports of headaches and fainting episodes.  In particular, the Veteran was hospitalized in September 1963 in which a physician diagnosed syncope, vasovagal.  An August 1964 treatment record reflects the Veteran's complaints of continual headaches with nausea and vomiting.  He was instructed to take Darvon with Compazine as necessary.  

It its January 2011 remand, the Board determined that a VA examination with medical opinion was necessary in order to fully and fairly evaluate the Veteran's claim.  

The Veteran was afforded a VA neurological examination in February 2011.  The examiner initially concluded that the Veteran's vasovagal syncope episodes occurred many years ago and that he has not had any recurrences.  With regard to headaches, the examiner noted that such complaints were documented in the service treatment records.  Moreover, the Veteran reported that he continued to suffer from such headaches.  Based on examination, the Veteran was diagnosed as currently having migraine headaches.  The examiner concluded, however, that since the headaches are of migraine quality, they were not related to the headaches that he had during service.  The Board finds the VA examiner's conclusion to be confusing.  It appears that while the VA examiner noted the Veteran's in-service complaints of headaches as well as his reports of continually suffering from headaches, he did not find that the migraine headaches were of service origin because the nature of such headaches were not clearly documented during service.  In this respect, however, the Board notes that the in-service complaints of headaches were noted to be accompanied by nausea and vomiting.  Thus, the Board finds that further clarification is warranted.      

Under the circumstances presented in this case, the Board finds that the case should be returned to the examiner for an additional opinion.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers on a claimant the right to VA compliance with the terms of remand order and imposes on Secretary a duty to ensure compliance with those terms).



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) (2010).  Expedited handling is requested.)

1.  The claims file should be returned to the physician who conducted the February 2011 neurological examination, if available.  Following review of the claims file including the February 2011 examination findings, the examiner is requested to offer an opinion as to the following:

Is it at least as likely as not (50 percent probability or more) that a current headache disorder began during the Veteran's period of active service?  In rendering this opinion, the examiner should discuss the in-service complaints of continual headaches accompanied by nausea and vomiting (1964) and the Veteran's subjective reports of ongoing headaches since service discharge.

A rationale for all opinions expressed should be provided.  If the original examiner is not available, the file review and opinion should be obtained from another physician.  If a new examination is deemed necessary, one should be scheduled. 
   
2.  After the development requested above has been completed to the extent possible, the record should again be reviewed.  If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order.

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. 2010).




______________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs