Citation Nr: 1122844 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 05-40 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for alcohol abuse with residual seizure disorder, including secondary to PTSD. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied entitlement to the benefits sought. In May 2011, additional evidence was received from the Veteran's representative consisting of unit history records, along with a waiver of RO initial consideration of the new evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304(a) (2010). The issue of service connection for alcohol abuse with residual seizure disorder is addressed addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has set forth stressors in relation to an asserted fear of hostile military activity during his service in Vietnam. 2. A VA psychologist through an August 2003 VA examination found that the claimed stressors were adequate to support a diagnosis of PTSD, and that the Veteran's symptoms were associated with the stressful experiences identified. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria are met for a grant of service connection for PTSD. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2010), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2010). As indicated below the Board is granting the benefit sought on appeal of service connection for PTSD. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). The criteria for establishing service connection for PTSD are: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Cohen v. Brown, 10 Vet. App. 128 (1997). If VA determines the 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 the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the veteran's stressor is unrelated to participation in combat, then his lay testimony, in and of itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting information from an independent source that corroborates his testimony or statements, such as service records. See Cohen, 10 Vet. App. at 146-47. See also Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). The available sources for corroboration of a claimed stressor are not necessarily limited to service records, but may also include other sources of evidence such as lay statements from third- party individuals. See Cohen, 10 Vet. App. at 143 (indicating that corroborating sources need not be found only in service records, contrary to what was previously set forth under the VA Adjudication Manual, M21-1, Part VI, para 7.46(f) (Sept. 21, 1992); and M21-1, Subch. XII, para 50.45(d) (1989)). Apart from the above provisions, there is a recent regulatory change to the pertinent criteria. Effective July 13, 2010, VA revised the regulation governing adjudication of claims for service connection for PTSD. See 75 Fed. Reg. 39,843 (to be codified at 38 C.F.R. § 3.304(f)). The new regulation essentially softens the requirement that there be objective corroboration of a claimed in-service stressor. Under the new standard, 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 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, 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. The Veteran's personnel file reflects that he had service in the Republic of Vietnam from October 1966 through May 1967. His Form DD-214 (Report of Separation from Service) indicates the receipt of the Vietnam Service Medal (VSM) with two Bronze Stars, and the Vietnam Campaign Medal (VCM) with Device. His occupational designation therein is listed as a Field Wireman. Personnel records further reflect participation in the campaign denoted as "Vietnam Counter-Offensive Phase II." In August 2003, the Veteran underwent a VA Compensation and Pension examination by a psychologist in connection with his claims. A medical history survery was completed based on the Veteran's report, as the contents of the claims file were very limited at that point. During the interview, the Veteran often had difficulty in retrieving the right words to describe events in his life and as such was not deemed a reliable informant. The Veteran's spouse provided some additional details. At one point in the interview, the Veteran appeared to the examiner to be truly upset and agitated as he talked about what he recalled of his Vietnam experiences. The Veteran indicated that when he arrived by ship and even as they were crossing the ocean "from the momement I got there I wanted to go back." He indicated that throughout the entire time that he was in Vietnam, he was scared and frightened. He indicated that his drinking began while he was in Vietnam, and from his description it appeared that drinking was a way to control the anxiety and the stress that he was feeling. When requested to identify stressful situations from service, the Veteran's response was that "somebody was trying to kill me." He further elaborated that there was one particular episode where "I was driving my jeep and they tried to push me in the river. It was an attempt to kill me. It really scared me." When the VA examiner inquired about other stressful events, the Veteran indicated that he lost friends, but his description at that point was very limited. The Veteran did indicate that when his tour was over, there was an inquiry whether he wanted to stay, and he had responded quite clearly in the negative. According to the examiner, the Veteran could not provide specific details related to his service in the military other than the fact that he was in a combat unit and certainly had at least one situation where he felt that his life was on the line and he was exceptionally stressed and thought that he was going to die in that particular situation. Meanwhile, a mental status exam was completed. The diagnosis given was of substance abuse, in remission by history; and PTSD, based on information gathered from spousal report and the Veteran's response to questions related to Vietnam. The VA examiner then expressed the opinion that "[b]ased on information gathered from his spouse, it is at least as likely or not that the Veteran does suffer PTSD and that given the family reports there is a strong likelihood that the substance abuse disorder is linked both to his service time stressors as well as his difficulty in adjusting to the community." Under the foregoing circumstances, and with due application of pertinent VA law, the Board has determined that the criteria for service connection for PTSD are met. The evidence contained within the record for purposes of reaching said decision are encompassed within the report of the August 2003 VA Compensation and Pension examination. Through that examination, the Veteran offered a description of an ongoing fear of hostile military activity during his service in Vietnam. While the details regarding an in-service stressor in connection with the Veteran's concern for his personal safety during service were never forthcoming, the VA examiner was of the view that these statements amounted to a "stressor." The Board emphasizes that under applicable law, the matter of sufficiency of stressor is not one for the case adjudicator to make, rather its sufficiency must be presumed. See Cohen, 10 Vet. App. at 144. Further, the examining VA psychologist diagnosed the Veteran with PTSD, and by all apparent indication related this psychiatric disorder to the stressful experiences from his Vietnam service. Applying the dictates of the newly revised regulation on establishing service connection for PTSD where due to concern for hostile military or terrorist activity, the requirements for entitlement to that benefit are demonstrated. Once again, the new regulation eliminates the process of objective verification of an in-service stressor where involving the claimant's asserted in-service fear of hostile military activity. Where there is a VA treatment professional's finding that the claimed stressor is sufficient to support a PTSD diagnosis, the stressor instead may be established through the claimant's own lay testimony. See 75 Fed. Reg. 39,843. Such is the case in the present matter. The Board therefore reaches the conclusion that resolving all reasonable doubt in the Veteran's favor, a grant of service connection for PTSD is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board acknowledges that this case does not represent the best possible set of circumstances to support an award of benefits, as the stressors alleged are inherently lacking in detail. Nor is there a strong case to be made that fear of hostile military action was clearly incidental to the Veteran's specific occupational duties, other than the fact that he served in an Artillery unit while in Vietnam. That nowithstanding, there are sufficient grounds to establish that on the balance, the objective criteria under the applicable law and regulations are met. Accordingly, service connection for PTSD is deemed warranted. ORDER Service connection for PTSD is granted. REMAND Before a decision may be issued on the claim for service connection for alcohol abuse with residual seizure disorder, further evidentiary development is required. The Veteran contends that alcoholism with residual seizure disorder developed as secondary to his now adjudicated service-connected PTSD. Generally, VA law and regulations preclude granting service connection for a disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(d). See also VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). The United States Court of Appeals for the Federal Circuit ("Federal Circuit"), however, held in Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2011), that there is a limited exception to this doctrine when there is "clear medical evidence" establishing that a claimed condition involving alcohol or drug abuse was acquired secondary to a service-connected disability, itself not due to willful misconduct. In the present case, the Veteran has a diagnosed substance abuse disorder of alcoholism, in remission, by his report for the past 25 years. There is then of record the August 2003 VA examiner's opinion that "given the family reports there is a strong likelihood that the substance abuse disorder is linked both to [the Veteran's] service time stressors as well as his difficulty in adjusting to the community." The preceding medical opinion effectively attributes the prior pattern of alcoholism to both in-service stressors (presumably associated with PTSD), and the non-service related factor of adjustment to post-service life. As such, the opinion is hardly the "clear medical evidence" that would be required to associate alcohol abuse with the Veteran's service-connected PTSD. Instead, the Board concludes that based upon this record, a new and more definitive medical opinion is essential to resolve the matter of secondary service connection. Also required given the Veteran's allegation of a seizure disorder, is an accompanying opinion on whether said condition developed incidentally to alcoholism. Hence, a new medical examination is being ordered. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). Accordingly, this claim is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA neurological examination. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner should then provide an opinion in response to the following inquiries: * Indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed alcoholism (now in remission) is due to his service-connected PTSD. The opinion should consider both initial causation of alcoholism by PTSD, and the possibility that the Veteran's alcoholism was chronically aggravated by the same. For purposes of this analysis, chronic aggravation is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. In providing the requested opinion, the VA examiner should note review of the August 2003 VA examiner's opinion discussing the etiology of substance abuse in relation to PTSD. * Provided only that the Veteran's alcoholism is determined to have an etiological relationship with his service-connected PTSD, then please indicate whether it is at least as likely as not that the Veteran manifests a seizure disorder that is assocated with his prior alcoholism. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 2. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO/AMC should readjudicate the claim for service connection for alcohol abuse with residual seizure disorder, as secondary to PTSD, in light of all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs