Citation Nr: 1303972 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 09-22 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for attention deficit hyperactivity disorder (ADHD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1995 to June 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The case has since been transferred to the Roanoke, Virginia RO. The Veteran testified at a Board hearing at the VA Central Office in March 2012. This transcript has been associated with the file. At the March 2012 Board hearing, the Veteran submitted additional evidence. However, he waived RO review of this evidence. The Veteran submitted additional evidence in November 2012 and again waived RO review of the evidence. Therefore, Board adjudication of the current appeal may go forward without remanding the appeal for a supplemental statement of the case. See 38 C.F.R. § 20.1304(c)(2012). The issue of entitlement to service connection for ADHD 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. FINDING OF FACT The Veteran's PTSD is related to service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for PTSD, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis which conforms to the criteria set forth in the Diagnostic and Statistical Manual of the American Psychiatric Association, 4th edition (DSM-IV); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). The Veteran contends that he suffers from PTSD as a result of the stressful incidents he experienced while in-service. He relates two specific events to his current PTSD symptoms, the first being a shooting attack at Fort Bragg in October 1995. The Veteran has indicated that in the morning of October 27, 1995 he was preparing for a "fun run" with his brigade. He stated that while in formation his Brigade Commander began yelling that someone was shooting and to drop to the ground. See September 2010 statement. He stated that he feared for his life during this event. See April 2011 VA examination report. The second stressor involves a parachute jump where he had problems with his parachute and injured his ankle when he landed. See e.g., September 2010 statement. The Veteran reported that his PTSD symptoms include nightmares, social impairment, feelings of irritability and anger, an exaggerated startle response, and occupational impairment. See April 2011 VA examination report and March 2012 Board hearing transcript. The Veteran was treated regularly at the VA Medical Center in Los Angeles, California for his PTSD. See e.g., June 2005 and June 2007 VA treatment records. A June 2009 opinion from a VA psychologist who had been treating the Veteran reiterated his symptoms included nightmares, intrusive thoughts, sleep difficulty, hypervigilance, and social and occupational impairment. She also opined that he suffered from PTSD which was more likely than not related to his military service. The Veteran was afforded a VA examination in April 2011. The examiner reviewed the claims file and discussed the Veteran's military service with him. The examiner did note the Veteran claimed 2 specific stressors, one involving the shooting at Fort Bragg and one involving his parachute jump. With regard to the first claimed stressor, the Veteran stated that he saw other soldiers getting injured or killed, he feared for his life, and he felt helpless. The Board notes that the shooting incident at Fort Bragg has been verified by Joint Services Records Research Center (JSRRC) Coordinator. Specifically, the JSRRC noted that an individual fired upon the Veteran's brigade in October 1995 while they were forming for a run, which resulted in injuries and death. Although the Veteran's exact location at the time of the shooting could not be verified, it was noted that the Veteran was assigned to the unit and location where the shooting occurred. See May 2010 JSRRC statement. The April 2011 examiner diagnosed the Veteran as having PTSD and stated that the events he witnessed in-service involved actual death, threatened death, serious injury, and threats to self and others. The Veteran responded with fear and helplessness. The Veteran was also noted to have recurrent recollections of the event and distressing dreams of the event. Following the submission of the April 2011 VA examination report, the RO requested an addendum. In the addendum opinion, the examiner changed his view as to the etiology of PTSD. He stated that the claimed stressor of the shooting incident at Fort Bragg was not adequate to support a diagnosis of PTSD because the Veteran was not shot at. He also stated the Veteran's symptoms and PTSD were not due to the claimed stressor. The Court, in Pentecost v. Principi, 16 Vet. App. 124 (2002), has held that a veteran need not corroborate his actual physical proximity to (or firsthand experience with) and personal participation in rocket attacks while stationed in Vietnam. See also Suozzi v. Brown, 10 Vet. App. 307 (1997) (holding that "corroboration of every detail [of a claimed stressor] including the appellant's personal participation" is not required; rather an appellant only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure). Although the April 2011 VA examiner initially determined that the Veteran's stressor did meet the criteria for PTSD, he later determined that the claimed stressor was insufficient for service connection purposes. The rationale for the change in opinion is not persuasive. It was noted that the Veteran did not meet the criteria for PTSD because he was not shot at. The Veteran has repeatedly explained that his unit came under fire and everyone dropped to the ground. See e.g., March 2012 Board hearing transcript. It has also been verified that the shooting incident occurred when the Veteran was stationed at Fort Bragg. The Veteran need not corroborate every detail. Id. At the very least, the Board finds the evidence is in relative equipoise. The June 2009 VA psychologist, who has treated the Veteran on numerous occasions, linked the Veteran's PTSD to service. The April 2011 VA examiner initially linked the Veteran's PTSD to service, based on a confirmed stressor. The Veteran has also provided consistent statements reiterating the stressors he experienced in-service and the current PTSD symptoms he is suffering from. The Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. As such, the Veteran's claim of service connection for PTSD is granted. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for PTSD is granted. REMAND With regard to the Veteran's claim for entitlement to service connection to ADHD the Board observes that the Veteran's contention is that his ADHD preexisted service, but had been in remission when he entered active duty. At his March 2012 Board hearing he testified that he believed his ADHD was aggravated in-service. He has also indicated that his ADHD is secondary to several head injuries sustained during active duty. The Board has reviewed the June 2007 rating decision issued on the claim. The rating decision references various pieces of evidence which are not currently contained in the claims file, specifically service treatment records. Although the Veteran provided copies of his service treatment records in November 2012, it is unclear if this includes all available records. On remand, attempts should be made to locate any outstanding service treatment records and associate them with the claims file. As noted above, the Veteran contends that his ADHD was aggravated during service, possibly due to head trauma. However, for VA service connection purposes, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In order to rebut the presumption of soundness on entry, VA must now show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2005). See also Wagner, supra. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. But such "defects" are not "diseases" or "injuries" within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that the former is "more or less stationary in nature", while the latter is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. Even if it is determined during service that a Veteran suffers from a congenital disease, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43253 (1990). However, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c). See also Quirin, 22 Vet. App. at 397; Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, among other things. Id. On remand, an opinion must be obtained which addresses the nature and etiology of ADHD to include whether it is a congenital disease or defect. On remand, the AOJ should also make efforts to obtain all outstanding treatment records at any VA treatment facility. The Board notes that in a February 2008 VA treatment record the Veteran indicated that he was receiving benefits from the Social Security Administration (SSA). See also October 2007 VA treatment record noting application for SSA. However, there are no records from the SSA found in the claims file. Therefore, on remand the Agency of Original Jurisdiction (AOJ) should request any possible available SSA records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (VA's duty to assist includes obtaining SSA decision and supporting medical records pertinent to VA claim); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA cannot ignore SSA determination of disability but must provide reasons or bases regarding such determination). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA treatment records. All information which is not duplicative of evidence already received should be associated with the claims file. If the AOJ is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C. § 5103A(b)(2) (West 2002). 2. Attempt to obtain any outstanding service treatment records by contacting the National Personnel Records Center, or other appropriate source. Efforts to obtain the foregoing records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). 3. The AOJ must request from the SSA complete copies of any disability determination(s) it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision(s). Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. All efforts to obtain these records should be documented in the claims folders. If the records do not exist or further efforts to obtain those records would be futile, the Veteran and his representative are to be notified of unsuccessful efforts in this regard so that they have an opportunity to obtain and submit those records for VA review. 4. After completing the above and allowing for a reasonable amount of time to pass, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any ADHD. The claims file, including a copy of this REMAND, must be made available to the examiner for review and the examination report should reflect that such a review was accomplished. Any medical testing should be accomplished. After reviewing the record and examining the Veteran, the examiner should offer an opinion as to the following: (a) Is it at least as likely as not that ADHD is a congenital defect? If so, is it at least as likely as not that ADHD was subject to a superimposed disease or injury during service such as a head injury? (b) Is it at least as likely as not that ADHD is a congenital disease? If so, is it at least as likely as not that it had its onset in service? It would be helpful if the physician would use the following language, as is appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood) when rendering the opinion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so state in the examination report, with an explanation as to why this is so. 5. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim, reviewing all the evidence on file to include any newly received records. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs