Citation Nr: 1302291	
Decision Date: 01/22/13    Archive Date: 01/31/13

DOCKET NO.  10-23 506	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Paul, Minnesota


THE ISSUES

1. Entitlement to service connection for a urethral stricture.

2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety and depression.

3. Entitlement to a total disability rating based upon individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active military service from June 1966 to January 1970 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the RO. In that rating decision, the RO determined that new and material evidence had not been received to reopen a claim for service connection for a urethral stricture (i.e., the RO confirmed and continued the previous denial of service connection for a urethral stricture); denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety and depression; and, denied entitlement to a TDIU.

In October 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

The issue of whether there was clear and unmistakable error (CUE) in the September 2009 rating decision has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issue of entitlement to a TDIU is 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. Urethral stricture had onset during active service.  

2. Anxiety disorder and depression, not otherwise specified are attributable to service.  

3. The Veteran does not have PTSD.

4. Antisocial personality traits have been diagnosed.


CONCLUSIONS OF LAW

1.  A urethral stricture was incurred in service. 38 U.S.C.A. §§  1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 

2. Anxiety disorder and depression, not otherwise specified were incurred in service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011).

3. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011).

4. Antisocial personality traits were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

Given the favorable disposition of these claims for service connection, the Board finds that all notification and development actions needed to fairly adjudicate the claims have been accomplished.

Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
 
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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) evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). 

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Analysis

Urethral Stricture

As an initial matter, With regard to the procedural posture of this claim, the Board notes that the Veteran filed his initial claim for service connection for a urinary tract infection shortly after service, in August 1971. The claim for service connection for a urinary tract infection was denied in September 1971 and the Veteran did not appeal this rating decision. However, the September 1971 rating decision clearly indicates that the Veteran's service treatment records were not available for review. 

The Veteran claimed a testicle injury in February 1975. A July 1975 decision reflects that the RO was deferring a final decision on the issue in order to make one more attempt to secure service treatment records. The claim for service connection (for a testicle injury) was denied in an August 1975 rating decision. There is no clear indication from the record that the service treatment records had been obtained and reviewed prior to issuance of the rating decision but the RO indicated that there was no reference in service of an injury to the Veteran's testicles. The Veteran applied to reopen his claim for a urethral stricture in June 1978. Notice as to how to reopen this claim was provided to the Veteran in June 1978. No further action to adjudicate the claim was undertaken until the September 2009 rating decision when the RO determined that new and material evidence had not been received to reopen the claim for service connection for a urethral stricture (the previous denial was confirmed and continued). 

The Board observes that the Veteran's service treatment records and personnel file were requested and received in May 2009. The Board has no reason to believe that these records were received prior to May 2009. Thus, this claim for service connection for a urethral stricture must be considered on a de novo basis without the restrictions imposed on claims previously considered and denied to which finality attaches. 38 C.F.R. § 3.156(c).  

In his October 2009 Notice of Disagreement, the Veteran asserted that his urethral stricture was the result of traumatic injury (being hit in the testicles while he served in Vietnam) sustained in service.

The Veteran's June 1966 Report of Medical History associated with his enlistment examination documents a history of dysuria (3-4 years ago). There was no known infection. An October 1966 service treatment record documents the Veteran's difficulty with urination. An August 1967 service treatment record reflects the Veteran's complaint of burning on urination ongoing for three weeks. Urinalysis was negative and no diagnosis was offered; the Veteran was prescribed Pyridium (to be taken as needed) and directed to return to the clinic to undergo repeat urinalysis.

In the April 1970 report of VA examination, the Veteran indicated that he received treatment for a urinary infection in service. The examiner documented his report of symptoms. Objective examination was negative.  An August 1971 report of VA hospitalization documents the Veteran's history of urinary frequency, dribbling, dysuria and trouble starting a stream. He denied a history of gonorrhea but reported being hit in the perineum by a baseball bat and sustaining perineal injury while in the Army. The Veteran underwent retrograde urethrogram which showed a tight stricture in the mid-bulbous urethra. A catheter could not be passed for a voiding study. An infusion intravenous pyelogram showed normal upper tracts and when the bladder was full, he voided and dilation of the proximal urethral showed stricture located at the midbulbous urethra. The Veteran underwent cystoscopy and thereafter excision of scar reanastamosis and excision of bulbous urethral stricture. Final diagnosis was urethral stricture, secondary to trauma.

A February 1972 treatment record reflects that a retrograde urethrogram showed some residual narrowing from surgery for ruptured urethra. The Veteran was voiding well and had good stream; urinalysis was negative. He was instructed to return in six months for another retrograde urethrogram, urinalysis and examination.

A December 1974 report of VA hospitalization indicates the Veteran underwent Blandy urethroplasty of a bulbous urethral stricture. The examiner indicated that the stricture was probably secondary to trauma from a baseball bat (sustained as a young child). The examiner noted that the Veteran had resection of this stricured area and primary re-anastomosis; however, the anastomosis gradually strictured down again necessitating urethroplasty for the complaints of difficulty voiding with a marked bulbous urethral stricture.

A May 1975 report of VA hospitalization documents that the Veteran underwent second stage urethroplasty for his urethral stricture. It was noted that the Veteran sustained the initial injury during his period of service when he was hit with a baseball bat and developed swelling of the penis and scrotum. The surgical procedure was performed without complication. The physician stated that "it is felt that the patient has permanent disability due to his urethral stricture which occurred during the service."

A May 1976 VA treatment record reflects the Veteran's complaint of a recurrence of dysuria, weak stream and difficulty initiating stream. The Veteran reported that he was instructed to take Pyridium and Septra which provided some relief of the symptoms; however, his symptoms would return if he did not take the Pyridium. The assessment was questionable urethral stricture. A May 1978 treatment record indicates the Veteran sustained trauma to his urethra in 1970 during his period of service in Vietnam. The assessment was history of urethral stricture. A July 1979 treatment record documents that the Veteran is status post urethral stricture surgery with a history of chronic prostatitis. The Veteran complained of burning discomfort in his testicles with voiding; however he had good stream. The examiner reported that symptoms were the same as past symptoms. Treatment records dated March - August 1996 document the Veteran's history of urethral strictures (secondary to trauma) and the symptoms related thereto.

Given this history, the Veteran was scheduled for a VA examination to determine the etiology of his urethral stricture. The examiner was to review the claims file and provide an opinion as to whether it was at least as likely as not that the Veteran's claimed urethral stricture was related to getting hit in the testicles with a baseball bat during his period of service.

In the report of May 2010 VA examination, the examiner indicated that the medical records had been reviewed. Yet the examiner focused specific attention to the December 1974 report of VA hospitalization which reflected that the Veteran sustained a baseball bat injury to the perineum as a young child and developed a urethral stricture. The examiner does not make note of any records indicating urethral stricture was secondary to trauma sustained from baseball bat injury in service. However, the examiner seems to document that the date of onset of the urethral stricture was 1970 and that the Veteran underwent multiple corrective surgeries for his urethral stricture. 

The examiner documented that initial trauma was a baseball bat to the perineum as a young child. The examiner documented the Veteran's urinary symptoms including urgency, urine retention and nocturia. On objective examination, the diagnosis was status post urethral stricture repair (x3) with no active problem of urethral stricture. The examiner opined, based on examination and available information, that it was not likely that the Veteran's urethral stricture (occurring prior to military service) was aggravated beyond the normal progression. The examiner's rationale was that the urethral stricture was treated after military discharge. Further, the examiner noted that the Veteran currently reported a history of incomplete emptying of the bladder and a two year history of questionable enlarged prostate. The examiner indicated that there had been no follow-up treatment for the Veteran's urethral discharge since 1978. The Veteran was encouraged to follow-up with his primary care provider for further evaluation.

In this case, though the May 2010 examination report indicates that the Veteran has no active problems associated with his urethral stricture, it is clear that the Veteran has had symptoms of a urethral stricture during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. at 321 (2007). Further, the service treatment records reflect treatment for urinary symptoms, including difficulty with urination and burning on urination.  The service treatment records indicate that the Veteran was prescribed Pyridium for his urinary symptoms. The only remaining issue is therefore whether the currently diagnosed urethral stricture is related to in-service events.

During the Board hearing, the Veteran's representative noted the Veteran's previous assertion of being hit in the testicles with a baseball bat during service. August 1971, May 1975, May 1978 and March - August 1996 treatment records reflect the Veteran's report of being hit in the perineum by a baseball bat during his period of service. The Veteran is competent to report the in-service incidents and symptoms, and his report of in-service injury must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board finds the Veteran's reports as to the in-service incidents to be credible.

The evidence seems to confirm that the urethral stricture was secondary to trauma. In the May 1975 VA treatment record, the physician stated, "it is felt that the patient has permanent disability due to his urethral stricture which occurred during the service."  

The May 2010 VA examiner focused her review of the medical evidence of record on the December 1974 treatment record which suggested that the Veteran's urethral stricture was the result of trauma sustained from a baseball bat injury to the perineum during his childhood. The examiner opined that it was not likely that the Veteran's urethral stricture (which occurred prior to military service) was aggravated beyond normal progression. As this opinion focused on the question of aggravation of a preexisting disability (which has not been established), it is of little probative value in considering the issue of direct service connection. Furthermore, there is no discussion of the contrary evidence of record which indicates that the trauma which led to the urethral stricture was sustained in service. 

Given the proximity to service of the diagnosis of a urethral stricture (August 1971) in light of the in-service urinary symptoms and taking into account the statements of in-service injury which the Board has found credible, the Board finds that the weight of the evidence supports a relationship between the urethral stricture and in-service injury to the Veteran's genitalia region. Accordingly, service connection for a urethral stricture must be granted.  

Acquired Psychiatric Disorder

As an initial matter, the Board finds that the Veteran did not engage in combat with the enemy. As discussed below, the Veteran served in Vietnam and faced incoming rocket, fire on a base in Vietnam. However, a finding that a veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). The Veteran's DD Form 214 reflects that he received the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Good Conduct Medal, none of which, by themselves, demonstrate combat. In addition, the Veteran's military occupation specialty (MOS) was supply specialist. Moreover, the Veteran's PTSD stressor corroboration research checklist indicated that he faced rocket fire in the performance of his duties as supply specialist. He did not, however, describe an actual fight or encounter with a military foe or hostile unit or instrumentality. 

Based on the above, the Board finds that the Veteran did not engage in combat with the enemy and the combat provisions of 38 U.S.C.A. § 1154 are not applicable in this case.

There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f). 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, 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. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes incoming mortar, rocket, and sniper fire. Id. 

The Veteran claims that he has a psychiatric disorder, including PTSD, anxiety disorder and depression due to multiple stressors. He faced incoming rocket fire on a base in Vietnam. He reported that the racial tension between black and white soldiers was high and he got into multiple racial fights and on one occasion was hit in the testicles by a bat (report of this event has been deemed credible as noted herein above). He had a grenade thrown at him that did not explode.

The Veteran testified during the Board hearing and reported in various lay statements that during his period of service in Vietnam, he engaged in multiple fights with black soldiers due to the heightened racial tensions among the troops on base. As noted, he also reported facing incoming rocket fire and having a grenade thrown at him that did not explode. Again, the Veteran is competent to testify as to his observations regarding the in-service incidents, and this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1336 (Fed. Cir. 2006). The service treatment records reflect that the Veteran received treatment for laceration of his right hand that was sustained in a fight in March 1968. The Board therefore finds the Veteran's testimony as to the in-service incidents to be credible.

Regardless of the Veteran's claimed stressors, however, his claim for PTSD must be denied because the preponderance of the evidence reflects that he does not have a diagnosis of PTSD based on any service-related stressor. Specifically, the psychologist who conducted the August 2009 VA psychiatric examination concluded that the Veteran did not meet criteria B of the DSM-IV PTSD criteria. The psychologist explained that the Veteran did occasionally have thoughts or nightmares about his in-service experiences but they had only occurred a couple of times per year and were not particularly distressing and the Veteran had never had any intrusive recollections or re-experiencing symptoms. The Veteran did experience physiological reactions, at times, but that was in reaction to new events.  The psychologist also noted that the Veteran's clinical profile on MMPI-2 was not congruent with patients that tended to have PTSD and his score on the Mississippi was under the cutoff score that was generally suggested for Vietnam combat related PTSD. The July 2012 VA examination confirms that the Veteran does not meet criteria for PTSD.

During the Board hearing, the Veteran's representative did not dispute the lack of a PTSD diagnosis. As to the Veteran's lay statements, while veterans are competent to testify as to some matters of diagnosis and etiology, the question of whether a Veteran has PTSD based on a claimed in-service stressor is the type of medical issue as to an internal, non-observable process as to which lay testimony is not competent. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); 38 C.F.R. § 3.304(f) (specifically requiring medical evidence diagnosing PTSD). Consequently, the Veteran's statements as to whether he has PTSD are not competent. 

Clemons also stands for the proposition that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness. Id at 4-5. In this case, the August 2009 VA psychiatric examiner also diagnosed the Veteran with anxiety disorder and depression, not otherwise specified and antisocial personality traits. The psychologist concluded that although it was impossible to definitively determine to what extent the Veteran's anxiety symptoms, especially anger and violent behavior, were related to trauma experienced in the military or his history of alcohol abuse or his antisocial personality traits, he opined that the Veteran's anxiety disorder was more likely than not related to experiences which occurred during military service. The psychologist explained that although the Veteran had some antisocial traits prior to entering the military, his anxiety was likely exacerbated to some degree by his military experiences, including exposure to rocket fire, exposure to the grenade that did not explode and all the fights that were the result of increased racial tensions among the troops. 

The January 2012 VA examining psychologist, in confirming the absence of a PTSD diagnosis, stated that there was no connection between the Veteran's anxiety and his only confirmed verified stressor (the rocket attack). In this regard, the psychologist stated that the Veteran did not report a rocket attack as a stressor. The psychologist noted that the only opinion requested was whether the anxiety disorder was related to the rocket attacks. The psychologist also noted that the Veteran had a history of antisocial behavior, particularly in the military. This opinion was flawed because it did not take into account the Veteran's statements indicating that his anxiety (psychiatric disorder) was the result of engaging in fights that were the result of increased racial tensions during his period of service. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Moreover, the Board has found the Veteran's testimony in this regard to be credible. Thus, the January 2012 VA examiner's opinion is of little probative value.

By Contrast the August 2009 psychologist did base his conclusion on the Veteran's (credible) statements. Thus, his opinion did not suffer from the same flaws as those of the January 2012 VA examiners and is entitled to greater probative weight. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). 

The Veteran does not have a diagnosis of PTSD and personality disorders are not diseases or injuries within the meaning of applicable legislation (see 38 C.F.R. § 3.303(c)), therefore service connection for PTSD and antisocial personality traits is not warranted.  However, the weight of the evidence supports a relationship between his acquired psychiatric disorder, other than PTSD, manifested by anxiety and depression and in-service events.  Accordingly, service connection for the acquired psychiatric disorder manifested by anxiety and depression must be granted.


ORDER

Entitlement to service connection for a urethral stricture is granted.

Entitlement to service connection for anxiety disorder and depression, not otherwise specified is granted.

Entitlement to service connection for PTSD is denied.

Entitlement to service connection for antisocial personality traits is denied.


REMAND

Given the decision above, the Board notes that it is the responsibility of the RO to assign disability ratings and effective dates for the now service-connected urethral stricture and acquired psychiatric disorder. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As the assigned disability rating for the now service-connected urethral stricture and acquired psychiatric disorder would impact a decision on the claim for a TDIU, the Board finds it would premature to issue a final decision regarding the claim for entitlement to a TDIU at this time.

Accordingly, the case is REMANDED for the following action:

1. The RO must assign disability ratings and effective dates for the service-connected urethral stricture and acquired psychiatric disorder. Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

2. Then, after considering whether any additional development (such as obtaining a medical opinion as to the effect of the Veteran's service-connected disabilities on his employability) is deemed necessary in light of any subsequently obtained evidence, the RO should readjudicate the Veteran's claim for entitlement to a TDIU rating. If the determination remains unfavorable to him, he must be furnished with a Supplemental Statement of the Case regarding the TDIU, and given an opportunity to respond thereto.

Then if indicated, the case should be returned to the Board for the purpose of appellate disposition.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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. 2012).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs