Citation Nr: 1136740 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 07-09 908A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES Entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for mental disability other than PTSD. REPRESENTATION Appellant represented by: Eric A. Gang, Esquire ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to October 1968 and from August 1969 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that denied entitlement to service connection for PTSD. The Veteran failed to report for a videoconference hearing before the Board in October 2008. He has not requested that the hearing be rescheduled. Accordingly, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2009). In May 2010 the Board issued a decision that denied entitlement to service connection for PTSD. The Veteran thereupon appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2010 the Court issued an Order granting a joint motion of the parties and remanded the case to the Board for action in compliance with the joint motion. In the joint motion, the parties agreed that VA should have construed the Veteran's claim as one for service connection for any mental disability rather than a claim solely for service connection for PTSD. The Board has characterized the issues on appeal accordingly. The issue of entitlement to service connection for a mental disability other than PTSD is addressed in the remand that follows the order section of this decision. In August 2011, the Board received additional evidence that has not been considered by the RO. However, the evidence was accompanied by a written waiver of RO consideration of the evidence from the Veteran's representative, and thus the Board will consider it in deciding the Veteran's claim. See 38 C.F.R. § 20.1304(c) (2010). FINDING OF FACT The Veteran has PTSD due to a verified event during active service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to establish the Veteran's entitlement to service connection for PTSD. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) or 38 C.F.R. § 3.159 (2010). I. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The specific criteria applicable to claims for service connection for PTSD are set forth at 38 C.F.R. § 3.304(f). It provides that service connection for PTSD 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 PTSD diagnosed during service or based on the specified type of claimed stressor: (1) If the evidence establishes a diagnosis of PTSD 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record in a case before VA with respect to benefits under the laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA will give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. II. Analysis The Board has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decisions, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran has maintained that he has PTSD stemming from combat experiences in Vietnam. The Veteran's personnel file indicates that he served in the Republic of Vietnam (RVN) from May 1967 to April 1968 at Tan Son Nhut Air Base. The Veteran's claimed stressor was Tan Son Nhut Air Base being overrun by Viet Cong in February 1968, during which he was forced to draw his weapon and hide behind a cargo carrier. The existence of an event alleged as a "stressor" that caused PTSD, although not the adequacy of the event to cause PTSD, is an adjudicative, not a medical, determination. Zarycki v. Brown, 6 Vet. App. 91, 97-8 (1993). However, the sufficiency of the stressor is a medical determination, and adjudicators may not render a determination on this point without independent medical evidence. West (Carlton) v. Brown, 7 Vet. App. 70 (1994). A Chronology of VC/NVA Attacks on the Ten Primary Operating Bases in the RVN 1961-1973 shows that Tan Son Nhut was attacked 19 times between January 1968 and March 1968 with the worst attack occurring in February 1968 with a total of 19 US Killed in Action and 159 US wounded. Additionally, the United States Military Assistance Command Vietnam Monthly Summary for February 1968 shows that Tan Son Nhut was attacked by two Viet Cong Main Force Battalions. Therefore, the Board concedes that the Veteran's alleged combat stressors did occur. The question remaining before the Board is whether the Veteran has PTSD that is etiologically related to his combat stressors. For the following reasons, the Board finds that the evidence is in equipoise as to whether he has PTSD as a result of the combat stressors. Concerning the Veteran's service treatment records, there is no indication of in-service psychiatric treatment. Additionally, the Veteran's December 1970 separation examination disclosed no evidence of a psychosis or neurosis. Regarding the Veteran's VA treatment records, a December 1999 treatment note, prepared by a psychiatrist, indicates an Axis I diagnosis of generalized anxiety, rule out PTSD and cocaine dependence. The examiner indicated that the Veteran had a long history of anxiety and flashbacks to Vietnam. An October 2000 treatment note from the same physician indicates a diagnosis of generalized anxiety with a history of polysubstance abuse; the Veteran was reported as having a slightly anxious mood. In December 2000, the psychiatrist noted that the Veteran was less anxious and sleeping better and denied substance or alcohol use, psychosis or suicidality. The diagnoses were generalized anxiety and polysubstance dependence. During February 2005, the Veteran requested to see a mental health provider for continued abstinence of alcohol and controlled substances and PTSD. A March 2005 treatment note indicates the Veteran had a PTSD intake consult with a Licensed Social Worker. The Social Worker indicated that he did not review the Veteran's DD 214. The Veteran complained of avoiding crowds and poor sleep. The Social Worker reported that the Veteran's response to his conceded stressor was one of intense fear, helplessness or horror; that the Veteran persistently re-experienced his stressor; had intense psychological distress to internal or external cues that symbolized or resembled an aspect of the traumatic event; persistent avoidance with a sense of detachment from others and a sense of a foreshortened future; and persistent symptoms of increased arousal to include difficulty falling or staying asleep, hypervigilance, and an exaggerated startle response; with the duration of the disturbance being 35 years. The Veteran claimed symptoms of poor sleep, nightmares and social isolation since his time in Vietnam. The Social Worker rendered an Axis I diagnosis of PTSD. The Board notes that the claims files contain a letter dated in January 2006 from a clinical psychologist for the PTSD program at the McGuire VA Medical Center. The psychologist indicated that the Veteran used alcohol and illegal drugs in order to self-medicate after his experience in Vietnam. The psychologist indicated that based on a clinical interview of the Veteran and psychometric screening, it was his opinion that the Veteran met the diagnostic criteria for PTSD secondary to his combat experience in Vietnam and further that his PTSD was severe enough to interfere with his interpersonal, occupational and social functioning. The psychologist wrote that the Veteran indicated he had recurrent and vivid nightmares, frequent intrusive thoughts, flashbacks with auditory and visual hallucinations, periods of increased irritability and frustration, anger outbursts, hyperarousal, and avoidance behaviors related to his combat. The Veteran was thereafter afforded two VA examinations with two different examiners who did not diagnose the Veteran with PTSD. The first examination report, dated in June 2006, was authored by a psychologist. The examiner indicated he had reviewed the claims file. The examiner indicated that the Veteran did not meet the DSM-IV criteria for PTSD. The Veteran was diagnosed with alcohol abuse, cocaine dependence in partial remission and cannabis dependence. The examiner indicated that he found no persuasive evidence that the Veteran's substance abuse problem was related to self-medicating for symptoms of PTSD; although plausible, the finding was not substantially supported based on the Veteran's history and current functioning. The examiner provided an addendum concerning the prior VA examination during March 2007. The examiner indicated that he did not believe the Veteran met the criteria for PTSD as his symptoms did not cause clinically significant impairment; adding that his historical impairment was largely the result of chronic polysubstance abuse and dependence. Additionally, the examiner indicated that the Veteran's anger symptoms appeared to be more related to interpersonal conflicts and possible cluster B personality traits, rather than secondary to difficulty controlling arousal symptoms associated with PTSD. The examiner reiterated that the Veteran told the examiner that his substance abuse and anger during his second enlistment were secondary to his perception of being unfairly treated by his superiors and not being stationed in Germany, as opposed to numbing of re-experiencing symptoms or attempts to control hyperarousal triggered by exposure to stimuli associated with combat trauma. The examiner also indicated that the Veteran had taken the empirically keyed MMPI2 which displayed no elevations above cut-off scores on any measure of psychopathology, including the PTSD scales. The only elevation was a tendency to display oneself in a favorable light, as a moral and conscientious person. The examiner did not think that this invalidated the results as it was likely explained by the circumstances of a compensation examination, if not anti-social behavior. The examiner also noted that the intake examinations, discussed above, only contained a self-report interview data and a face valid psychological testing measure - PTSD Checklist, Military. The examiner observed that the Veteran's score dramatically increased, from 61 to 85, after his claim for service connection for PTSD was denied at the RO level. The examiner also indicated that the Veteran initially sought treatment for PTSD within the context of unemployment and housing difficulties and that his attendance at PTSD groups was minimal with no medications prescribed to control symptoms. Additionally, the examiner noted that during the August 1999 intake for drug and alcohol rehabilitation, there was no mention of symptoms or diagnosis of PTSD which would be consistent with the aforementioned January 2006 letter. The examiner also noted that the March 2005 listing of PTSD as a problem was made by a physician's assistant and there was no documentation concerning how the Veteran met the criteria for this diagnosis; the examiner additionally noted that the Veteran was seeing the physician's assistant for bronchitis/sinusitis on the date that the diagnosis was entered into the computer system. The examiner indicated that the Veteran's financial hardship, unemployment, and substance abuse can significantly contribute both directly and indirectly to symptoms of Mood and Anxiety disorders; with substance dependence being the most objectively supported explanation for his problems. The examiner indicated that his difference of opinion with the mental health PTSD clinicians was based on his greater weighting of past documentation of symptom presentation and legal history, empirically keyed instruments to ascertain severity of symptomatology, personal observation of personal behavior not demonstrative of pathological hyperarousal or avoidance, and Axis IV contributions of current symptom presentation. The examiner also pointed out that since he was not involved with treatment of the Veteran, rapport maintenance was not a concern and that his duty was to diagnose the individual as accurately as possible. VA treatment records indicate that the Veteran was an unscheduled walk-in to VA mental health during August 2006. He was seen by the author of the January 2006 letter in support of his claim. The Veteran complained to this psychologist that he had been denied service connection for PTSD by the RO and reiterated his symptoms of irritability, depressed mood, insomnia exacerbated by the Iraq conflict, occasional dreams and intrusive thoughts of Vietnam. The following month, the Veteran participated in another mental health PTSD intake consult in order to re-enroll in the PTSD program. His chief complaint was that his PTSD claim had been denied and that he felt anxious and depressed. The intake examination report indicates that the Veteran's Axis I diagnoses were PTSD and major depression, recurrent. The examiner indicated that the Veteran reported intrusive thoughts, re-experiencing of events, avoidance, hyperarousal symptoms, sleep problems, irritability, anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. The examiner indicated that the Veteran had a long history of chronic and severe PTSD. The Veteran was afforded an additional VA examination during January 2009 with a psychologist. The examiner indicated that previous diagnoses of PTSD were based on hyperarousal and flashbacks; further indicating that the Veteran plainly failed to describe any such symptoms at the time of this examination. The examiner indicated that the Veteran demonstrated no significant increase in psychomotor agitation or physiological arousal when discussing Vietnam. The examiner reported that the Veteran was very vague when indicating dreams or nightmares related to Vietnam; the Veteran indicated that he thought about Vietnam all the time but couldn't say what he thought about particularly. The examiner indicated that there was not adequate evidence for a PTSD diagnosis; however, the Veteran did describe some limited PTSD symptoms. More specifically, the Veteran did appear to think of Vietnam intrusively a few times a month, which caused him sadness. The stressors that the Veteran described were mortar rounds landing near where he was working at the post office. Interestingly, the Veteran indicated that he did not realize that the Tan Son Nhut Air Base was overrun by the Viet Cong during 1968 until the next day, as he had been working the night shift. The examiner indicated that he was not really questioning the Veteran's stressors, but instead commenting that the Veteran did not seem to be demonstrating the full range of symptoms or an intensity of symptoms that would warrant a diagnosis of PTSD and appeared to be more accurately diagnosed with an anxiety disorder, not otherwise specified with very limited PTSD-like symptoms. The Veteran indicated that he was not receiving any current mental health treatment. In summary, the examiner indicated that the Veteran did not meet the full diagnostic criteria for PTSD as he did not demonstrate the range and intensity of symptoms that would warrant such diagnosis. Additionally, the examiner indicated that the Veteran's substance abuse disorder appeared to have been the Veteran's main barrier to effective social and occupational adjustment over the years. The VA psychologist who authored the January 2006 letter indicating that the Veteran had PTSD and was enrolled in the PTSD program at the local VA Medical Center submitted an additional medical opinion dated in June 2011. He indicated that he was the Director of the PTSD program at the McGuire VAMC. This psychologist also indicated that he reviewed the clinical record and had treated the Veteran. A review of the treatment record did not support this psychologist's assertion that he has been the Veteran's treating psychologist for some time at the VA PTSD program. This psychologist reviewed the adverse opinions and provided his opinion that the Veteran met the DSM criteria for PTSD based on his combat stressors. He provided detailed reasons why he made this assessment. He stated that the Veteran was currently enrolled in the program and that the Veteran first came to his attention in 2004 following his intake by a social worker at which time he was determined to meet the clinical criteria for PTSD. The Veteran was placed in an intensive 10 week program and then followed on a regular basis and provided needed treatment. The Veteran has been active in group treatment and both formal and informal individual follow-up to address his PTSD since his initial enrollment date. The psychologist explained that veterans must meet clinical criteria for PTSD as outlined in the DSM-IV-TR as a condition of enrollment in the program. Based on those criteria, clinical records review and interview with the Veteran and psychometric screening, it was this psychologist's professional opinion that the Veteran meets the diagnostic criteria for PTSD secondary to his combat and war zone experiences in Vietnam. The psychologist noted the Veteran's memories of seeing rows of silver containers containing bodies as well as having been involved with recovering bodies. The psychologist cited to the Veteran's most traumatic memory of being the lone guard at a base at night when the Tet offensive occurred and having just two clips of ammunition and being shot at and shelled during the night until the next shift came on. The Veteran had reported that he was fearful he would not make it through the night and that this feeling remained with him until he returned to the United States. The psychologist further noted that the Veteran reported recurrent and vivid nightmares and intrusive thoughts about his service, that he experienced flashbacks with auditory hallucinations, irritability and frequent anger outbursts, as well as anhedonia, depression and isolating and avoidance behaviors. It was also noted that the Veteran abused substances and alcohol as a means of self-medication. The psychologist felt that the Veteran's condition was chronic and highly resistant to change, because it had in fact continued despite regular therapy and treatment. His prognosis was deemed fair given the nature of the PTSD which included nightmares, frequent intrusive thoughts and reliving combat and war zone experiences. The psychologist felt that the Veteran's PTSD was severe enough that it interfered with social, occupational and interpersonal functioning throughout the years. Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions. Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, there are competent, persuasive and probative opinions for and against the claim. Considering the most recent, detailed analysis by the VA treating clinical psychologist who is the Director of the PTSD program at the local VA Medical Center, the Board finds the evidence in equipoise as to whether the Veteran has a PTSD due to the verified combat stressors. Therefore, the Board will resolve reasonable doubt in the Veteran's favor and conclude that the criteria for service connection for PTSD are met. ORDER Entitlement to service connection for PTSD is granted. REMAND With respect to the claim for service connection for a mental disability other than PTSD, the Board notes that the only mental disability claim developed and adjudicated by the originating agency is the PTSD claim decided above. Therefore, the claim for service connection for a mental disability other than PTSD is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The Veteran and his attorney should be provided all required notice in response to the claim for service connection for a mental disability other than PTSD. 2. Then, the RO or the AMC should undertake appropriate development to obtain a copy of any outstanding, pertinent evidence. If it is unsuccessful in obtaining any such evidence, it should so inform the Veteran and his attorney and request them to provide the outstanding evidence. 3. Then, the Veteran should be afforded a VA examination by a psychiatrist or a psychologist to determine the nature and etiology of all acquired psychiatric disorders, other than PTSD, present during the period of this claim. The claims folders must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based upon the review of the Veteran's pertinent history and the examination results, the examiner should identify each acquired psychiatric disorder (other than PTSD) that has been present during the period of this claim. With respect to each of those disorders other than substance abuse disorders, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service or was caused or permanently worsened by his PTSD. With respect to each substance abuse disorder present during the period of the claim, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder was caused or permanently worsened by the Veteran's PTSD and/or any other service-connected disorder. The rationale for all opinions expressed must also be provided. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should adjudicate the Veteran's claim for service connection for a mental disability other than PTSD. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued, and the Veteran and his attorney should be afforded the requisite opportunity to respond before the claims folders are returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs