Citation Nr: 1118576 Decision Date: 05/13/11 Archive Date: 05/17/11 DOCKET NO. 08-34 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for frostbite residuals of the hands and feet, claimed as due to exposure to cold weather in Korea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2011 the Board issued a decision, wherein, in pertinent part, it reopened a claim of service connection for PTSD. Thereafter, it remanded the issue and also remanded the issue concerning cold weather residuals to the RO, via the Appeals Management Center (AMC). In March 2011, the AMC continued the denial of the claims and forwarded the appeal to the Board for further review. 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). FINDINGS OF FACT 1. Although the Veteran was likely exposed to stressful experiences during active duty service, he does not meet the DSM-IV criteria for a diagnosis of PTSD. 2. An acquired psychiatric disorder manifested by recurrent depression was not shown during service, was first shown many years following discharge from service, and is not etiologically related to active duty service. 3. Affording the Veteran the benefit of the doubt, residuals of a cold weather injury were incurred during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric to include PTSD have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2009); Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). 2. The criteria for service connection for residuals of a cold weather injury to the bilateral hands and feet have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.150, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (the VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (the Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Here, March 2004 and June 2005 letters from the RO satisfied these criteria. In the letters, the RO advised the Veteran of the basic criteria for service connection and explained VA's duties to assist him in obtaining evidence relevant to the claims. The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a) (2002). Compliance with the first Pelegrini II element requires notice of these five elements in initial ratings cases. See Dunlop v. Nicholson, 21 Vet. App. 112 (2006). Here, to the extent applicable, the March 2004 and June 2005 letters satisfied the duty to notify provisions regarding service connection claims. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file. In addition, the RO assisted the Veteran in trying to obtain records from the Navy Hospital in San Francisco pertaining to treatment for frostbite residuals. No records were located. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). The Veteran was provided VA examinations in February 2011. Concerning these VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The report of the examinations reflects that the examiners reviewed the Veteran's complete claims file, to include his service treatment records and past medical history. They recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the examinations are adequate. Based on these efforts, the Board finds that there has been substantial compliance with its remand directive. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). II. Service Connection for PTSD Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required- provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b) (West 2002); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the alleged stressor is not combat-related, then the veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Recent regulatory amendments changed the evidentiary standards regarding stressors based on a veteran's fear of hostile military or terrorist activity. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). These amendments are applicable to the Veteran's appeal. See 75 Fed. Reg. 39,843 (stating that the amendments are applicable to appeals currently before the Board that have not yet been decided). Under the recent amendments, lay evidence may establish an alleged stressor where: 1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, 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; 3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and 4) there is no clear and convincing evidence to the contrary. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. Fear of hostile military or terrorist activity occurs where 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. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. Here, a claim for service connection for PTSD was initially denied in an unappealed 1995 decision. In the January 2011 decision, the Board found that new and material evidence had been received to reopen the claim. Specifically, the Board noted the Veteran's credible statements regarding in-service experiences handling bodies in the DMZ during the Korean War. It also found credible supporting evidence that the stressors actually occurred. What was missing, however, was evidence of a current diagnosis of PTSD. In this respect, the Board noted that the VA outpatient treatment records did not include records of any psychiatric treatment. As such, the Board remanded the claim in order to afford the Veteran an opportunity to attend a VA psychiatric examination. The examination was conducted in February 2011. Unfortunately, it fails to include evidence of a current psychiatric disability manifested by PTSD. In addition, while it shows evidence of a recurrent major depressive disorder, it does not include evidence linking such to service. Rather, the VA examiner links the depressive disorder to a non-service-connected disability. The examiner noted that while the Veteran has symptoms associated with PTSD, he did not meet the full criteria for a diagnosis. For instance, he complained of bad dreams and a recurring nightmare associated with his experiences in Korea. He also noted that he tried not to think about his experiences in Korea. The examiner noted, however, that he did not completely meet the criterion B for PTSD. According to DSM-IV, a diagnosis of PTSD is made up of six criterions. Criterion B provides: A. The traumatic event is persistently reexperienced in one (or more) of the following ways: 1. recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed. 2. recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content. 3. acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur. 4. intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event 5. physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event Here, it appears that the Veteran meets criterion A-2 as he has dreams and nightmares of the stressful in-service events. The Board, however, is precluded from exercising independent medical judgment. Thus, the Board cannot conclude that the traumatic event is persistently reexperienced by the Veteran. In addition, the examination report appears thorough, complete, and the product of reliable principles and methods, therefore the Board cannot conclude that the examination is inadequate. In short, the only examiner to assess the Veteran determined that he did not endorse symptoms sufficient to satisfy criterion B, and hence, did not diagnose PTSD. In the absence of evidence to the contrary, the claim must be denied. The Veteran's representative, in his April 2011 Informal Hearing Presentation, argues that the VA examiner failed to render an opinion as to which PTSD symptomatology was associated with the Veteran's military service. As such, he argues that remand for a supplemental opinion is required. The Board disagrees. The pertinent regulation governing service connection for PTSD, 38 C.F.R. § 3.304(f) includes a requirement that there be a medical diagnosis of the condition in accordance with D.S.M. IV. The regulation does not provide for service connection for a disability manifested by symptoms of PTSD. Rather, a medical diagnosis that meets the diagnostic criteria under D.S.M. IV is required. Here, while the Veteran has symptoms of PTSD and credible evidence of an in-service stressor, he does not meet the criteria for a diagnosis of PTSD. As such, the weight of the evidence is against the claim and the claim must be denied. There is, however, evidence of a recurrent depressive disorder. Again, the weight of the evidence does not show that such was incurred during service or is otherwise related to such service. In this respect, the service treatment records do not show complaints or treatment for depression. In addition, the service discharge examination in January 1954 included a normal psychiatric examination. The evidence shows the incurrence of a depressive disorder many years following discharge from service. The VA examiner opined that such is due to chronic pain in his legs. Because the weight of the evidence indicates that recurrent major depression was not incurred during service or is related to service-connected disability, or is otherwise due to service, the criteria for service connection for an acquired psychiatric disability manifested by recurrent depression are not met and the claim must be denied. III. Service Connection for Cold Weather Residuals The Veteran asserts that he has current disability of the hands and feet due to exposure to cold weather while serving in Korea. For instance, in one statement, he asserted that in the winter of 1953-1954, the temperature dropped to 20 degrees below zero and he was not properly outfitted for the extreme cold. The Veteran's service treatment records confirm his service in Korea during the winter months of 1953-1954. They do not, however, document treatment for frostbite of other cold weather injuries. The Veteran underwent a VA examination in August 2005. The examination revealed cold injury of the bilateral hands and feet by history only. The evidence revealed other co-existing upper and lower extremity conditions such as conditions due to diabetes mellitus, a left ankle disability, and venous insufficiency. Based on the incomplete and inconclusive findings, the Board remanded this matter in January 2011 for additional examination. On examination in February 2011, the Veteran described the exposure to cold during active duty service. He reported that since such exposure he had constant pain in the hands and feet that was characterized by burning, numbness, pins and needles. The examiner noted degenerative changes of the bilateral wrists and right hand consistent with idiopathic calcium pyrophosphate dehydrate crystal deposition disease arthropathy. Such disorder was "known to follow trauma or considered such as frostbite." The examiner also found evidence of a freezing cold injury affecting the bilateral lower extremities. The examiner noted, however, that findings of peripheral neuropathy were due to the Veteran's diabetes mellitus and findings of a skin condition and edema of the legs was due to venous insufficiency. Finally, the examiner noted that a skin condition of the hands and feet was secondary to venous stasis changes and not associated with a cold injury. Given these findings, the Board finds that the criteria for service connection for residuals of a cold injury to the bilateral upper and lower extremities have been met. Although not documented during service, the Board recognizes the places, types, and circumstances of his service exposed him to cold weather conditions as alleged. In addition, there is evidence of current disability resulting in symptoms of pain, numbness, cold sensitivity, and locally impaired sensation. Moreover, x-ray evidence has confirmed the abnormalities of the hands consistent with a prior frostbite injury. While it is apparent that the Veteran has several other non-service-connected disabilities, including venous insufficiency and peripheral neuropathy due to diabetes mellitus, there remains evidence of current cold weather residuals that have been associated with his active duty service. As such, the benefit sought on appeal is granted. ORDER Service connection for an acquired psychiatric disorder to include PTSD is denied. Service connection for frostbite residuals of the hands and feet is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs