Citation Nr: 1300334 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-06 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for psychosis for the purpose of establishing eligibility to VA treatment pursuant to 38 U.S.C.A. § 1702. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to October 1987, including tours of duty in the Republic of Vietnam from July 1967 to September 1968 and from August 1970 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. As found by the Board in a July 2010 remand of this matter, however, the Veteran's claim for service connection for PTSD was originally denied in a December 2005 rating action by the Roanoke, Virginia, RO, and though a timely notice of disagreement was filed in April 2006, no Statement of the Case was issued. Instead, after the Veteran relocated to Georgia, the Atlanta RO included this claim in the rating action presently on appeal, and the matter was subsequently perfected for appeal. The Board has recharacterized the Veteran's claim for service connection for PTSD as reflected on the title page of this decision in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as claimant's description of history and symptoms; VA should construe claim for service connection based on reasonable expectations of non-expert claimant). The appealed claim for a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU) was granted by the RO in April 2011, effective from July 2005 through March 2009; as of March 2009 a 100 percent schedular rating came into effect. This determination was fully favorable to the Veteran, and the claim is no longer on appeal. In an April 2011 Supplemental Statement of the Case, the Appeals Management Center (AMC) in Washington, D.C., characterized the additional issue of entitlement to service connection for psychosis for the purpose of establishing eligibility to VA treatment as being on appeal. The Board can ascertain no rating decision and subsequent Notice of Disagreement and Statement of the Case as would potentially confer on the Board full jurisdiction over the matter. However, the Board will accept the Veteran's January 2012 hearing testimony and transcript as a timely notice of disagreement with the AMC's April 2011 adjudication and denial of the claim in its April 2011 Supplemental Statement of the Case. Nevertheless, as will be discussed below, the Board finds that the claim has been rendered moot. FINDINGS OF FACT 1. The evidence is at least in equipoise to corroborate the Veteran's claimed stressors of experiencing incoming fire and handling the bodies of servicemen killed in action during his period of service in Vietnam. 2. The medical evidence of record is sufficient to establish that the Veteran has PTSD that is attributable to his corroborated stressors. 3. The issue of entitlement to service connection for a psychiatric disorder for the purpose of establishing eligibility for VA treatment pursuant to 38 U.S.C.A. § 1702 is rendered moot by reason of an equal or greater benefit having been established by reason of the award of a TDIU and service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The appeal for the issue of entitlement to service connection for a psychosis for the purpose of establishing eligibility for VA treatment is dismissed. 38 U.S.C.A. § 1702, 1710 (West 2002); 38 C.F.R. § 17.36 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. In the decision below, the Board has granted the Veteran's claim for service connection for PTSD. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Moreover, the claim for service connection for psychosis for the purpose of establishing eligibility for VA treatment has been rendered moot, and thus, any discussion of the duty to notify and assist is unnecessary. I. Acquired Psychiatric Disorder 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, 1131. 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). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Generally, service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service will vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). 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. 38 C.F.R. § 3.304(f). Prior to July 13, 2010, VA regulations and Federal court precedent decisions established that if the claimed stressor is not combat related, the veteran's lay testimony regarding his inservice stressor is insufficient, standing alone, to establish service connection and must be corroborated by credible evidence. See, e.g., Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Court of Appeals for Veterans Claims has held that there is no requirement that such corroboration must be found in the service records. However, the credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Effective July 13, 2010, VA amended its rules for adjudicating disability compensation claims for posttraumatic stress disorder (PTSD) contained at 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. This revision adds to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. VA's specific PTSD regulation, § 3.304(f), previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to accept the occurrence of the claimed in-service stressor. VA later amended its PTSD regulations to also accept the statements of Veterans who are former Prisoners-of-War and those with an in-service diagnosis of PTSD as sufficient to establish occurrence of an in-service stressor if they are consistent with the places, types, and circumstances of service. The primary result of the recent amendment of 38 CFR § 3.304(f) is the elimination of the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. The regulation amendment has no impact on PTSD claims that arise out of in-service diagnoses of PTSD, or PTSD stressors experienced during combat, internment as a prisoner-of-war, or as the result of personal assault. Specifically, 38 C.F.R. § 3.304(f)(3), as revised effective July 13, 2010, provides as follows: 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. See 75 Fed. Reg. 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks to establish service connection for an acquired psychiatric disorder, to include PTSD, which he attributes to various incidents that occurred between 1967 and 1968 and between 1970 and 1971 while he served in Vietnam. In this regard, the record shows that the Veteran served in Vietnam with the following units at the following times: 573d Supply and Service Company July 1967-May 1968 243d Field Service Company 385th Quartermaster Company 243d Field Service Company May 1968-September 1968 304th CS Supply and Service Company August 1970-November 1970 HQ Detachment USA Support Command (QN) August 1970-August 1971 The Veteran has contended that the bases where he was assigned between 1967 and 1968 and between 1970 and 1971 came under attack and were engaged in numerous firefights. He has also described his most severe stressors as working in support of grave registration duties during his first period of duty in Vietnam, which included handling servicemen killed in action for return to the United States. The Veteran's service personnel records show that, during his two tours of duty in Vietnam, he served in support of the following campaigns: the Vietnam Counteroffensive, phase II; the Vietnam TET Counteroffensive; the Vietnam Counteroffensive, Phase IV; the Vietnam Counteroffensive, Phase V; the Vietnam Counteroffensive, Phase VII; and "Consolidation I." During his first period of service in Vietnam, the Veteran's duties are listed as "LdryBathImpregSupvr" (August 1967-May 1968), and "PlatoonSgt" (May 1968 to September 1968). During his second period of duty in Vietnam, the Veteran's duties are listed as "AsstOpenMessMgr" (August 1970-August 1971). At a periodic in-service examination in September 1971, just after his return from his second tour of duty in Vietnam, the Veteran was noted to have severe headaches. He was also documented during that examination as taking Librium and unknown headache medications. The reviewing clinician opined that the headaches may have been due to blunt trauma to the head while in Vietnam. Underlying service treatment records of treatment for these headaches in 1971 are also associated with the claims file. At the Veteran's service discharge examination in July 1987, he was evaluated as having no psychiatric abnormalities. However, in providing a history in connection with the examination, the Veteran indicated he had then or had experienced in the past frequent trouble sleeping, depression or excessive worry, and nervous trouble. The reviewing clinician did not elaborate on these specific complaints in the examination report. In a statement received in March 2009, a fellow serviceman, B.E.S. (initials used to protect privacy), wrote that he had known the Veteran for over 40 years and that they knew each other in Vietnam when the Veteran served in the 243 Laundry and Bath Company in Pleiku, Vietnam. B.E.S. detailed his duties in Vietnam. He asserted that he met the Veteran in July 1967 upon the Veteran's arrival in Vietnam. He recalled that Camp Holloway (an Army helicopter air base in Pleiku) was attacked during the month of August 1967 and that the Veteran was one of the individuals who helped and assisted grave registration personnel in collecting deceased personnel and body parts. He noted that this was a task only a few volunteered to assist with and that others were "volunteered by" senior non-commissioned officers (NCOs). While the lay statement from B.E.S. as to an attack on Camp Holloway in August 1967 has not been verified and is a lay recollection over 40 years after the fact, the Board accepts it as competent and credible evidence that the Veteran met and knew B.E.S. beginning in Vietnam and that the Veteran assisted B.E.S. in collecting deceased personnel and body parts. Thus, the Board finds that this aspect of the Veteran's claimed stressors is corroborated by independent lay evidence. Additionally, the RO has found the Veteran's documented involvement in the TET counteroffensive, in conjunction with the documented historical fact of an attack on Camp Holloway that was among the events that constituted the TET offensive against the U.S. in January 1968, as sufficient to establish his exposure to stressors, such as incoming fire during his period of service in Vietnam. The RO has associated with the claims file documentation of this incident, as obtained from the Internet. The Board finds the evidence sufficient to place the Veteran in the area of enemy incoming fire during the TET offensive and the U.S. counteroffensive campaign thereafter. Thus, affording the benefit of the doubt in favor of the Veteran, the Board finds at least two aspects of the Veteran's claimed stressors to be adequately corroborated by evidence in the claims file. Thus, the remaining question is whether the Veteran has a current psychiatric disorder that is related to those stressors. In a December 2004 medical opinion, a private clinician who began treating the Veteran in August 2004 noted that the Veteran had reported a variety of traumatic events that took place while serving his two tours in Vietnam, which included picking up bodies that had been killed in action. The examiner provided a detailed analysis of the diagnostic criteria and diagnosed the Veteran as having chronic PTSD. The Axis IV stressors included "exposure to war." The Board affords the December 2004 private clinician's opinion moderate probative value, as it is based on an examination of the Veteran and an accurate view of the Veteran's medical history, as well as a relatively clear description of the Veteran's claimed stressors. The probative value is somewhat diminished because the examiner was not a psychiatrist or clinical psychologist; rather, his credentials included that of a "licensed mental health counselor." At VA treatment in December 2004, the Veteran was found to have depression and care for PTSD was suggested. He was referred for VA mental health care. The Veteran's claim for service connection for PTSD was received in January 2005. At VA mental health treatment in January 2005, the Veteran was diagnosed as having PTSD. He reported having recurrent nightmares, intrusive thoughts, flashbacks with auditory and visual hallucinations, sleep and concentration problems, irritability, frustration, and avoidance behavior related to his military service. The Board affords the January 2005 VA clinician's opinion moderate probative value because it is based on personal examination of the Veteran and an accurate view of the Veteran's medical history, although the nature of the Veteran's stressors is not clearly described. In a March 2005 letter, a private psychiatrist, E.W.H., M.D., wrote that the Veteran had chronic PTSD. The Axis IV stressors were "Vietnam War Stressors." The Veteran was noted to have served in support of infantry at Pleiku during the TET offensive where he "saw combat and experienced incoming." Dr. E.W.H. began treatment of the Veteran as of that date, including prescription of three psychiatric medications, and has seen the Veteran for PTSD, in coordination with care at VA, since that time. The Board affords the opinion of Dr. E.W.H. significant probative value, as it is a medical opinion from a physician specializing in an appropriate field of medicine and based on an accurate history. At a VA examination in June 2005, the Veteran was diagnosed as having PTSD with dementia not otherwise specified to be ruled out. At the examination, the Veteran reported having almost daily intrusive memories and frequent nightmares of his experiences processing bodies in Vietnam. He reported that the most traumatic episode was when he was asked to assist the mortuary unit in processing bodies and body parts. He also mentioned the loss of a very close friend in battle. The examiner found specifically, with an extended explanation, that the Veteran met the DSM-IV criteria for PTSD. He further found that the Veteran's depression was likely related to his PTSD, but added that it was not clear whether his problems regarding memory and concentration were related to his PTSD. The examination report indicates that the initial draft was reviewed and completed by a supervising VA psychologist. The Board affords the June 2005 VA examiner's opinion that the Veteran has PTSD related to military service very high probative value because it is based on review of the claims file, examination of the Veteran, specific identification of the claimed stressors, and an accurate view of the Veteran's medical history. The report was also reviewed and approved by a supervising VA psychologist. The Veteran has been treated by VA and private physicians since 2005 with recurrent diagnoses of depression, PTSD, and cognitive impairment. At a VA examination in September 2010, as supplemented by an October 2010 addendum opinion, the examiner diagnosed the Veteran as having a cognitive disorder, not otherwise specified; a psychotic disorder, not otherwise specified, possibly secondary to dementia; an anxiety disorder, not otherwise specified; and a depressive disorder. In his October 2010 addendum opinion, the examiner explained that, due to the Veteran's cognitive impairment and the fact that he was not an adequate historian, he (the examiner) was forced to provide several "NOS" diagnoses with "rule outs" for others. The examiner elaborated that he was unable to adequately say whether the Veteran's depression and anxiety are secondary to his cognitive impairment or whether they represent separate conditions that might be related to his military service, without resort to speculation. He stated that he was unable to further comment on the diagnoses' relationship to one another or to assign a separate GAF score for each. The Board regards the September 2010 opinion as having limited probative value, in that it does not provide evidence as to whether the Veteran's psychiatric disorder is related to service, other than to leave open the possibility of it being so. As noted, service treatment records show that the Veteran was receiving Librium in service, which is generally regarded as a psychiatric medication with tranquilizing effects. The Board finds this to be evidence in support of his claim, insofar as he was at least arguably experiencing mental health symptoms and apparently receiving psychiatric medication in Vietnam and upon his return from Vietnam. The Board also finds it significant that that the Veteran indicated he had then or had experienced in the past frequent trouble sleeping, depression or excessive worry, and nervous trouble during his July 1987 service discharge examination. Moreover, the evidence is at least in equipoise to corroborate two of the Veteran's claimed stressors--handling soldiers killed in action and exposure to incoming fire. There is also probative VA and private medical opinions relating these stressors to his currently diagnosed PTSD. Accordingly, affording the benefit of the doubt in favor of the Veteran, entitlement to service connection for PTSD is warranted. See 38 C.F.R. § 3.304(f). II. Psychosis As the Veteran has been awarded TDIU and service connection has been granted for PTSD in this decision, the issue of service connection for a psychosis for purposes of establishing eligibility for VA treatment is rendered moot. He will be afforded equal or greater access to VA treatment by virtue of the previously established TDIU and the grant of service connection for a psychiatric disability for compensation purposes in this decision. See 38 U.S.C.A. § 1710; 38 C.F.R. § 17.36. Consideration of entitlement to service connection for an active psychosis for treatment purposes only under 38 U.S.C.A. § 1702 is rendered moot as an equal or greater benefit has been afforded the Veteran. As a result, the appeal as to this issue is dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). Therefore, the matter of service connection for a psychosis for the purpose of establishing entitlement to VA treatment need not be remanded to the RO for issuance of a Statement of the Case and the opportunity for the Veteran to file a substantive appeal, as may otherwise have been required. See, e.g., Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). ORDER Entitlement to service connection for PTSD is granted. The appeal for service connection for a psychosis for the purpose of establishing eligibility to VA treatment is dismissed as moot. ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs