Citation Nr: 1303205 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-33 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a respiratory disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from February 2006 to December 2006. She had an earlier period of National Guard service from February 1998 to September 2000, which resulted in an uncharacterized character of discharge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The RO developed and certified an appeal of entitlement to service connection for PTSD. Review of the claims file, however, including the Veteran's own statements and the medical evidence, demonstrates that the scope of this claim should be broadly construed to include any psychiatric disorder, including, but not limited to, PTSD. The Board has accordingly recharacterized the issue on appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran testified before the undersigned in March 2011. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action is required. REMAND After careful consideration, the Board finds that the Veteran's entire appeal must be remanded for further development. With regard to each remanded claim, the Board notes that the Veteran's claims file currently includes service treatment records from her National Guard unit. However, the record before the Board includes a February 2007 response from the service department noting "[t]here are no meds at code 13." This response indicates that medical records may be outstanding. Accordingly, further attempts are needed to obtain the Veteran's complete active duty service treatment records. Additionally, the Veteran testified at her Board hearing that she has had VA treatment since shortly after her service separation in December 2006. At present, the claims file contains VA treatment records only for isolated time periods in November 2007 and August 2008. The complete VA treatment records, in addition to any other outstanding evidence identified, should be obtained upon remand. With particular regard to PTSD, the Veteran testified at her March 2011 Board hearing that she was in fear for her life during service in Afghanistan. Her DD Form 214 confirms service in Afghanistan from May 2006 through September 2006, including service in a designated imminent danger area. Effective July 13, 2010, if a stressor claimed by a veteran is related to that 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 PTSD and that a 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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3) (2012). "[F]ear 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 id. A veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of that veteran or others, and that veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. The occurrence of an actual event or circumstance is necessary. In making this determination, VA must duly consider the places, types, and circumstances of a veteran's service as shown by the service record, the official history of each organization in which such a veteran served, a veteran's medical records, and all pertinent medical and lay evidence. The new rule is limited to cases in which the claimed stressor is related to a veteran's fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (Jul. 13, 2010). Here, the Veteran's claimed stressor, involving fear for her life in Afghanistan, is consistent with the place, types, and circumstances of that service. Her lay testimony alone, therefore, establishes the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3) (2012). The remaining evidence of record does not show a diagnosis of PTSD by a VA psychologist or psychiatrist. Rather, the available VA treatment records include a November 2007 group therapy note showing an assessment of "[p]ost deployment readjustment." Although an August 2008 VA outpatient neurology note reflects a primary medical history involving PTSD related to Afghanistan, the neurologist is not a VA psychiatrist or psychologist, as required for a grant of service connection under 38 C.F.R. § 3.304(f)(3). Likewise, although the Veteran testified during her Board hearing that she has been diagnosed with PTSD, her testimony does not make clear that this diagnosis was made by a psychiatrist or psychologist. See Board Hearing Tr. 23-24. For these reasons, the Board finds that a VA examination by a VA psychiatrist or psychologist, as indicated by 38 C.F.R. § 3.304(f)(3), is necessary to decide the case. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Regarding the claimed respiratory disorder, the Board likewise finds that a VA examination is necessary. The available STRs include a June 2002 examination documenting a history of sinusitis and hay fever, which were noted as "seasonal allergies." Likewise, a September 2005 post-deployment medical history questionnaire (which appears to relate to service during Hurricane Katrina) reflects the Veteran's own notation that she had taken allergy medication during the deployment; she denied chest pain or pressure, and difficulty breathing, but endorsed being exposed to smoke from burning trash or feces and vehicle or truck exhaust fumes. Finally, a post-active duty service history from January 2007 shows that the Veteran again endorsed a history of sinusitis and hay fever, which were again noted as "seasonal." She competently and credibly testified at her March 2011 Board hearing that she had symptoms involving wheezing, breathing difficulty, and chest contracting while in Afghanistan. See Board Hearing Tr. 18. Further, she testified that she has had ongoing symptoms involving congestion and chest tightness from the time of her Afghanistan service. See Board Hearing Tr. 18. She explained that she is now treated for allergies, because her primary care physician felt that her congestion and sinus issues were due to allergies. See Board Hearing Tr. 20. More recently, the Veteran underwent a VA examination in February 2007. The Veteran gave a history of having no prior respiratory problems or symptoms until Afghanistan, where she had an upper respiratory infection treated by antibiotics. Since then, she feels she has had more respiratory infections, for which she has not sought treatment. She tried her daughter's Albuterol once, which seemed to help her symptoms. The report of VA examination shows that she denied or did not report any current symptoms. She was exposed to fumes, including burning tires, almost continuously in Afghanistan. In light of this history and based on a clinical evaluation, the February 2007 VA examiner concluded that the Veteran possibly had some reactive airways disease symptoms, but had no current lung diagnosis. The VA examiner found significant that the Veteran had a smoking history, but noted that pulmonary function test (PFT) testing would be obtained. A PFT was then performed in February 2007. The conclusion from that PFT was that spirometry was within normal limits. The Board finds, in light of this evidentiary record, that a VA examination is necessary. Of particular importance, the VA examiner's assessment was equivocal, which is insufficient to reach a fully informed determination. Furthermore, no opinion was offered regarding the likely etiology of the claimed respiratory disorder. Moreover, the Board notes, diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress or as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (2012). As such, a new VA examination should be obtained. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon, 20 Vet. App. at 83. This action is necessary to obtain all procurable, relevant data and to fully and sympathetically develop the Veteran's claim. See 38 C.F.R. § 3.102 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's VA treatment records since service separation. If any of the records requested are unavailable, clearly document the claims file to that effect. 2. Contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center, and make as many requests as are necessary to attempt to obtain a copy of the Veteran's complete service treatment records. If any of the records requested are unavailable, clearly document the claims file to that effect. 3. After completing the development requested in paragraphs 1 and 2 above, schedule an examination with a VA psychiatrist or psychologist (or or a psychiatrist or psychologist with whom VA has contracted). The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies. Then, based on the record review and examination results, the examiner is requested to provide a current diagnosis, if any, and then address each of the following questions: (a) Is at least as likely as not (i.e., there is at least an equal probability) that PTSD, if found, is due to or caused by any in-service stressor? The examiner is particularly asked to address whether the stressor involving fear of enemy or terrorist activity during service in Afghanistan is adequate to support a diagnosis of PTSD. If so, are her current psychiatric symptoms related to that stressor? If the examiner does not diagnose PTSD, the examiner should explain why the Veteran does not meet the criteria for a diagnosis of PTSD. In making this determination, the examiner should accept as true the Veteran's stressor involving fear of enemy or terrorist activity during service in Afghanistan. (b) Without regard to question (a), is it at least as likely as not (i.e., there is at least an equal probability) that the Veteran has a psychiatric disorder other than PTSD that was incurred during her active service or is otherwise etiologically related to her active service? A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing the development requested in paragraphs 1 and 2 above, schedule the Veteran for an examination to determine the nature and likely etiology of her claimed respiratory disorder. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies. Then, based on the record review and examination results, the examiner is requested to provide a current diagnosis and specifically address each of the following questions for each diagnosed disorder: (a) What is the likelihood that the respiratory disorder pre-existed the Veteran's entrance into active duty service in February 2006? The examiner is particularly asked to address service treatment records from June 2002 and September 2005, which show treatment for sinusitis and hay fever. (b)(1) If the examiner finds that a respiratory disorder pre-existed service, what is the likelihood that the pre-existing disorder was not aggravated during that period of service, taking into consideration the Veteran's exposure to burning debris, dust, wind, and sandstorms in Afghanistan? See, e.g., Board Hearing Tr. at 17. For purposes of this question, the examiner should understand the term "aggravated" to mean that there was a permanent worsening or increase in severity of the disease. (b)(2) If examiner determines that the disorder was aggravated during a period of service to any degree, what is the likelihood that such aggravation was due to the natural progress of the disease? (c) Without regard to questions (a) and (b) above, is at least as likely as not (i.e., there is at least an equal probability) that symptoms of any current respiratory disorder were either manifest (i.e., present) during service, had their onset during, or are otherwise causally related to any event or circumstance of her active service? For purposes of making these determinations, the examiner should accept as true the Veteran's assertions that she has had ongoing symptoms of congestion and chest tightness since her active duty service in Afghanistan. See, e.g., Board Hearing Tr. at 18. In making all determinations above, the examiner is asked to indicate whether any diagnosed disorder represents a chronic disability as opposed to acute allergic manifestations subsiding on the absence of or removal of the allergen, healing without residuals. Particularly, the examiner is asked to consider service treatment records from June 2002 and January 2007 identifying "seasonal" allergies. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).