Citation Nr: 1237238 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 05-39 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from September 1974 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Columbia, SC, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The St. Petersburg, FL, RO retains jurisdiction over the Veteran based on his residence. In March 2009, the Board recharacterized the claim to encompass all currently-diagnosed psychiatric disorders. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The recharacterized claim was then remanded to the Appeals Management Center (AMC) for further development, to include obtaining Social Security Administration (SSA) records and providing a VA examination. The matter was again remanded by the Board in August 2011 in order to obtain an adequate VA examination and medical opinion. The appeal is now returned to the Board for further consideration. The Veteran testified at a January 2009 hearing held before the undersigned via videoconference from the RO; a transcript of the hearing is associated with the claims file. FINDING OF FACT The Veteran experienced a verified in-service stressor which is related to a current psychiatric disorder. CONCLUSION OF LAW An acquired psychiatric disorder, claimed as PTSD, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296, 302 (1999). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2012); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA has previously found that the occurrence of a verified stressor event is established. The Veteran has competently reported that during an artillery fire exercise in Germany in 1975, there was an explosion involving a gun next to his. Numerous service members were injured. Service treatment records reveal that in September 1975, he was found "in a stuperous condition by medics" following the accident. He was diagnosed at that time with a situational anxiety reaction; the August 1976 examination for separation verified this. No current symptomatology was noted or reported. There is no documentary evidence of treatment for psychiatric problems between separation from service and 1997. There has been reference to 1981 treatment at a VA facility in Miami, but the Veteran reported at his January 2009 hearing that he had only been referred for treatment; he stated that due to the costs involved in a trip to Miami, he never went. VA treatment records dated in May 1997 indicate that a mental health consultation was ordered at that time. VA doctors diagnosed PTSD, based in part on an in-service artillery accident. The Veteran also reported several post-service incidents and injuries, in 1981, 1990, and 1994, but the VA doctor clearly related his diagnosis to the in-service incident in some part. The Veteran was prescribed medication for his mental disorder. VA treatment records since that time document repeated complaints of psychiatric problems; providers have diagnosed and carried forward diagnoses of PTSD. The Veteran sought worker's compensation and SSA benefits in the late 1990's and early 2000's. In repeated psychiatric assessments, doctors found that while post-service incidents, which included repeated head traumas, played a role in the development of some or all of his current psychiatric diagnoses, the in-service artillery incident was also a causal factor. Many doctors also noted a tendency of the Veteran to exaggerate complaints and his history, but still opined, even on consideration of variation in his descriptions, that current PTSD or a posttraumatic stress reaction was related to in-service events. One examiner was deposed in August 1998 in connection with a workers' compensation case. Dr. KJC very clearly stated that, due to somewhat unclear events in service, the Veteran suffered from a psychiatric impairment prior to the occurrence of any post-service work accidents; she indicated this likely was PTSD. A VA examination was afforded the Veteran in January 2005. The claims folder was reviewed prior to the examination, and the Veteran reported the occurrence of his in-service stressor; however, he rendered several versions of events which differed in important aspects. The examiner did not feel that a verified stressor could be conceded when the details of such were so questionably reported; secondary gain was possible. He additionally noted the occurrence of several post-service accidents and speculated that there might be some brain damage present as a result. A cognitive disorder was diagnosed, but the examiner did not offer any opinion regarding a nexus to service for that or any other possible condition. Because the examiner did not consider a correct factual basis, including the establishment of a verified stressor, and did not offer a nexus opinion, the examination is not adequate for adjudication. A new VA examination was undertaken in April 2009. The claims file was again reviewed. His current psychiatric diagnoses, including PTSD, and use of medications were noted. The Veteran reported a history of assaultive behavior and drug use after service, but did not describe his post-service accidents and head injuries. The examiner noted the reported artillery incident, as found by the Board in March 2009. He opined that no diagnosis of PTSD was warranted, as the diagnostic criteria were not all met. However, the examiner did diagnose an anxiety disorder not otherwise specified (NOS), and opined that such was the result of the documented in-service stressor. The in-service situational anxiety reaction was related to the current diagnosis. The examiner stated that opinion was based on his diagnostic impressions, his interview with the Veteran, review of the claims file, and review of the medical records. VA then sought clarification of the April 2009 examination report and opinion, citing apparent conflicts in the DSM-IV definitions of the conditions the examiner had cited as chronic. Further, the examiner had failed to comment on the occurrence of several post-service head injuries, previously noted to be important factors in the Veteran's current disability picture. In July 2010, the VA examiner offered an addendum to his April 2009 opinion following further review of the claims file. He noted a single 1994 motor vehicle accident in addition to the in-service event already considered in April 2009, though he also accepted the AMC's assertion that there had been "several" post service incidents. He then changed his prior opinion, stating that he would have to resort to mere speculation to relate the in-service situational anxiety disorder to the currently diagnosed anxiety disorder NOS. He cited the occurrence of "several" post-service stressors and the absence of mental health treatment for 20 years following separation from service. The April 2009 examination and the associated July 2010 addendum are also not adequate for adjudication. In April 2009, the examiner failed to consider a complete record, as he made no reference to any of the post-service events. While the AMC's objection to the medical rationale for the offered April 2009 opinion is somewhat questionable, as it appears to substitute a lay judgment for the examiner's medical judgment in violation of Colvin v. Derwinski, 1 Vet. App. 171 (1991) in order to express disagreement with or dislike of the rendered positive opinion and lead the examiner to a desired outcome, the objection based on the lack of discussion of post-service incidents is well taken. Unfortunately, the examiner failed to conduct an adequate review of the file, and cited only one of the three documented post-service injuries in rendering a reconsidered opinion. Although he noted "several" others, the lack of detail showing exactly what injuries were considered or what their effects may have been renders the resulting opinion inadequate. The Board therefore again remanded the matter for another VA examination, which was conducted by a new examiner in October 2011. The Board's remand directed that a psychiatrist perform the examination, but a psychologist actually examined the Veteran. The deviation from the letter of the remand is in this case not important; VA recognizes both psychologists and psychiatrists as qualified to render competent opinions on the cause of mental disorders. Further, there is no question or medical factor which might require application of the medical degree of a psychiatrist, who is also an M.D., involved here. Substantial compliance is all that is required with VA remand orders, particularly when an explanation is offered for any variance. D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). The October 2011 VA examiner reviewed the claims file; although she summarized the Veteran's history, and pointed out several inconsistencies in his accounts regarding his legal and substance abuse histories, she did not specifically discuss the fact of or circumstances surrounding post-service injuries. The VA examiner opined that the diagnostic criteria for PTSD were not met; she felt that the Veteran was exaggerating or over-endorsing PTSD symptomatology. His clinical presentation was not consistent with his complaints, and he was inconsistent in his history. She therefore felt that there was no showing of symptoms over time, and no significant functional impairment, which are required for a diagnosis of PTSD (Criteria E and F). She also stated that she could not provide any current diagnosis of a mental disorder based on the examination, without resorting to speculation, due to her questions over the Veteran's credibility. In sum, there is no adequate VA examination and opinion of record. No examiner clearly addressed the Veteran's full medical history, to include repeated head traumas, and none offered a nexus opinion with an adequate rationale. At best, the two most recent VA examiners took positions of neutrality, stating that the nexus question could not be addressed without resort to speculation. In contrast, several private doctors were able to address the nexus question fairly clearly, while offering a well-reasoned and thorough rationale for the expressed positive opinions. Each of them fully considered and addressed the Veteran's complete medical history, to include discussion of the specific of each of his reported and documented injuries. They addressed the in-service stressor as well as the post-service accidents in opining that some part of the Veteran's current psychiatric problems are related to the verified service stressor. The findings and opinions of Dr. KJC are considered especially persuasive; at her August 1998 deposition, she ably and thoroughly supported her opinion that the artillery explosion in service, regardless of the varied stories presented by the Veteran, had an impact upon his mental health that persisted and was present at the time of the first post-service injury in 1981. It is true that there is no documentation of mental health treatment for almost 20 years following separation from service, but there are other indications of psychiatric problems during that period. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). For example, the Veteran has competently and credibly reported that he was referred for treatment in 1981. While this certainly involved his physical injuries related to an exploding tire, he also indicates, as reflected in later VA treatment records, that there was a psychiatric component, perhaps depression, associated with him at the time. Accordingly, service connection for an acquired psychiatric disorder is warranted. The preponderance of the competent an credible evidence establishes that it is at least as likely as not that the verified in-service stressor event caused some psychiatric problems, which have continued to some extent since service. Although subsequent events and injuries may serve to subsume or mask the service-related problems, the evidence shows they do exist. Finally, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. ORDER Service connection for an acquired psychiatric disorder, claimed as PTSD, is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs