Citation Nr: 1304941 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-42 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder and generalized anxiety disorder. 2. Entitlement to service connection for residuals of traumatic brain injury (TBI), to include headaches. REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1963 to February 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran testified before the undersigned in a videoconference hearing in April 2011. A transcript of that hearing was produced, but it contained a number of notations that the transcriptionist found the recording to be inaudible. As such, the Board advised the Veteran that it had not been able to produce a written transcript of the hearing and offered him another hearing. See 38 C.F.R. § 20.717 (2012). The Veteran requested another videoconference hearing. Therefore, the Board remanded the case in July 2011 to afford such a hearing. The Veteran again testified before the undersigned via videoconference in October 2011. That hearing transcript is sufficient. Both the April and October 2011 transcripts are of record. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. There are currently no pertinent records in the paperless file that are not also in the paper claims file. However, any further development or adjudication of this matter should take into account this paperless claims file. The Veteran and his representative raised the issues of service connection for a neck and back disorder during the October 2011 hearing, asserting that the Veteran injured his neck and back during service and that he continued to have symptoms. These issues have not been adjudicated by the RO, as the agency of original jurisdiction (AOJ). As such, the Board has no jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for TBI, to include headaches, 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. The Veteran will be notified if any action is required on his behalf. FINDINGS OF FACT The Veteran has currently diagnosed PTSD that has been linked by medical evidence to an in-service stressor for which there is credible supporting evidence. CONCLUSION OF LAW The criteria for service connection for PTSD and related depression and anxiety have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board's decision herein to grant service connection for PTSD with related depression and anxiety constitutes a full grant of this benefit sought on appeal. Therefore, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Generally, service connection requires competent and credible evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. ; Hickson v. West, 12 Vet. App. 247, 253 (1999). However, under C.F.R. § 3.303(b), the nexus element may be established based on medical or lay evidence where there is competent evidence of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Further, to be entitled to service connection for PTSD, the record must generally include the following: (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he currently has a psychiatric disability, to include PTSD, depression, and anxiety, due to a parachuting accident during service on October 3, 1965. Although service personnel records reflect that the Veteran's military occupational specialty was aircraft mechanic or crewman, he had joined a skydiving club and participated in a jump with other service members. This accident or stressor is corroborated by the service records. Specifically, the Veteran's main parachute failed to open at approximately 2,500 feet, and he fell freely until activating his reserve parachute at approximately 100 to 150 feet (or at the tree line). The Veteran states that he tried to remain calm, but lost consciousness or passed out either shortly before pulling the reserve parachute cord or when he hit the ground. He does not remember anything from when he hit the ground to when he arrived in the hospital. It is unclear from the available service records whether or when the Veteran lost consciousness. Nevertheless, he received inpatient treatment at the Frankfurt Army hospital for 18 days for multiple injuries. As a preliminary matter, the Board notes that, although this incident occurred during the Veteran's period of active duty, the service department conducted an investigation and determined that it was not in line of duty. Generally, service connection may be granted based only on disability that was incurred or aggravated in line of duty during active military service. See 38 C.F.R. §§ 3.1(k), 3.303(a). "In line of duty" means injury or disease that was incurred or aggravated during a period of active service, unless it was the result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, a result of his abuse of alcohol or drugs. A service department finding that injury or disease occurred in line of duty is binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA. As pertinent to this case, line of duty requirements are not met for the purposes of VA benefits if, at the time of the injury or disease, the Veteran was (1) absent without leave which materially interfered with the performance of military duty; or (2) confined under a sentence of court-martial involving an unremitted dishonorable discharge. 38 C.F.R. § 3.1(m). There is no requirement that VA accept a service department determination that an injury or disease was not in the line of duty. Here, service records reflect that the Veteran's injuries were found to be not in line of duty because he was serving 14 days of punitive restriction to his unit area at the time and, therefore, was absent without leave or authority. The punishment was extra-judicial in response to Article 15 proceedings, and the Veteran was subsequently granted an honorable discharge. The line of duty investigation report indicates that the injury was not the result of intentional misconduct or neglect. Further, the statement of medical examination and duty status indicates that the Veteran was not under the influence of alcohol or drugs at the time, and the absence without leave did not materially interfere with the performance of his military duty. The Veteran's commanding officer subsequently certified that the Veteran's absence did not interfere with the performance of his military duty on October 3, 1965, because it was a Sunday and was not a normal duty day for the unit. For the foregoing reasons, although the parachuting accident was found to be not in line of duty by the relevant service department, it does not fall under the categories to be not in line of duty for the purposes of VA service-connected benefits. See id. As such, service connection may be granted based on disability from this incident. The Board will now turn to the merits of the claim for psychiatric disorder. The Veteran's service records contain no complaints or treatment for mental health symptoms. During his January 1966 military separation examination, he denied any depression or excessive worry, nervous trouble of any sort, or excessive drinking habit. No clinical abnormality was found at that time. The Veteran testified in October 2011 that he was a social drinker prior to the parachuting accident, and he began to drink heavily afterwards. He stated that he continued to drink regularly until the late 1980s, and he began to have symptoms after he stopped drinking, including anxiety attacks, difficulty sleeping, nightmares, flashbacks, and difficulty communicating with others. He was prescribed pills to treat his anxiety at that time. The Veteran testified that he was working as a mechanic at an airport at the time, which became more difficult due to his symptoms. He also developed anger problems over the past 10 years. The Veteran testified that he eventually sought treatment at the Vet Center and VA facilities, and he was diagnosed with PTSD due to the parachuting accident in service. The Veteran's hearing testimony in April 2011 was similar. He testified to current problems with anxiety, fear, memories of traumatic events, sleeping difficulties, and nightmares. He also reported being on suicide watch a few times, for which he received treatment at a hospital and at the Vet Center. The Veteran indicated that he sometimes wonders why he is here and fellow service members are not, stating that he was not deployed to Vietnam due to the parachuting incident. The evidence includes a detailed December 1999 mental health evaluation from a Vet Center provider, a counselor with an M.S. The Veteran reported some childhood emotional difficulties including feeling abandoned by his father, the death of his grandmother, and an abusive stepfather from ages 13 to 16. He characterized his childhood as happy, with a close relationship with his mother. The Veteran reported experimenting with alcohol in 11th grade, but he denied any acting out or legal problems, although he dropped out of school due to boredom. The Veteran volunteered for the Army in 1963 and received training in aircraft maintenance with regular promotions. He stated that he began drinking as a way to cope with the assassination of President Kennedy, whom he thought of as his hero. The Veteran reported being involved in an automobile accident while under the influence of alcohol in Germany, which resulted in a reduction to private (E-2). His commanding officer was killed in an automobile accident involving alcohol shortly thereafter, and he was reassigned to another location in Germany for rehabilitation. The Veteran reported spending most of his days drinking alcohol, and that he joined a skydiving club and his parachute failed to open on one jump. He remembered losing consciousness among the treetops and regaining consciousness when he was lying on the ground, then being medevac'd to the Army hospital. The Veteran reported no broken bones but only bruises. The counselor noted that he related this incident with flattened, blunt affect. The Veteran stated that he returned to duty after the incident with a worse drinking problem than before. He was then caught stealing a pilot's flight jacket and was reprimanded and denied future promotions. The Veteran described his life after service as "just OK," with steady employment until April 1999 and completion of his GED. He reported working as service manager at an airport, in aircraft fabrication, as a pilot and mechanical inspector, in restoration of antique aircraft, then as director of maintenance in an aviation company from 1987 to April 1999. He was let go after a dispute with his supervisor, and he had not worked since then due to extreme fear of anxiety. The Veteran reported extreme use of alcohol until April 1988, and that he had problems with social interpersonal functioning. He also reported having a "mini-stroke" with severe nosebleed in 1984, as well as treatment since 1994 for anxiety and various physical disorders. The Veteran stated that he suffered from anxiety whenever he was near an airport, and that he could no longer fly unless he had a co-pilot. He described frequent anxiety attacks, irritability, unprovoked anger, paranoia, guilt feelings, and isolation. The Veteran stated that psychological treatment had not been very effective. He reported losing two friends to suicide over the past year. The Vet Center counselor stated that mental evaluation upon presentation indicated depression, impaired memory function, and flat-blunted affect, with fair judgment. He opined that the Veteran had generalized anxiety and PTSD related to the parachuting accident during service, and that this near death experienced coupled with the loss of his father at an early age and the loss of his hero (President Kennedy) left the Veteran with insecure feelings and self-doubt. The further loss of his commanding officer in an automobile accident involving alcohol also left him feeling insecure and unsafe. The counselor noted that the parachuting accident occurred on October 3, and the Veteran later received his pilot's license on October 3, and he reported that the month of October brings on feelings of loss and somatic complaints including frequent stomach pain requiring emergency treatment. The counselor opined that the Veteran appeared to meet all DSM-IV criteria for generalized anxiety disorder and PTSD. The Veteran's generalized anxiety was noted to be chronic, but to worsen in times of additional stress. The counselor diagnosed generalized anxiety disorder, rule out PTSD chronic moderate related to military parachute incident, and alcohol dependence in remission since April 1988. VA treatment records dated from April 2001 through September 2009 reflect several mental health diagnoses including major depressive disorder and PTSD. See, e.g., records dated in April 2001 (including a summary of the Veteran's history before, during, and after service, consistent with the 1999 evaluation, and diagnosing major depression related to loss of employment); May 2001 mental health record (diagnosing major depressive disorder and PTSD with similar symptoms); April 2007 mental health record (noting a diagnosis of PTSD from a motor vehicle accident and parachute accident, as well as depression in remission, and alcohol dependence in remission since 1988); August 2007 primary care record (noting a diagnosis of PTSD with symptoms of anxiety based on the parachute accident); August 2009 mental health record (diagnosing depression, rule out PTSD from the parachute accident, and alcohol dependence in full sustained remission). The Veteran continued to receive regular treatment at the Vet Center, in addition to VA treatment. In a March 2009 letter, three of the Veteran's treating Vet Center providers, an M.S.W./L.C.S.W., a Ph.D, and a M.Ed. indicated that the Veteran had been receiving periodic individual counseling since November 1999. They opined that the Veteran had PTSD that was chronic and serious in nature, and that had deteriorated since his son died in a June 2008 car accident, with a poor prognosis. The Veteran was afforded a VA mental health examination in August 2009. The examiner summarized the service records concerning the parachute accident. He also noted the December 1999 evaluation as documenting the Veteran's difficult family background, military history, and post-military history, with a diagnosis of generalized anxiety disorder and rule out PTSD. The examiner noted VA treatment in January 2001 for anxiety disorder and a detailed assessment in March 2001 with a history similar to that in the 1999 Vet Center evaluation. At that time, the Veteran reported significant depressive symptoms and occasional flashbacks of falling, although he denied nightmares and reported daily intrusive thoughts related to having been wronged at his last place of employment. The impression at that time was major depression related to loss of employment. Follow-up VA records from 2004 through 2006 noted diagnoses including major depression and PTSD, with stressors including family problems. An August 2009 treatment record reflected complaints of progressively worse depression over the past several years, in part related to the death of his son and numerous psychosocial stressors. During the VA examination, the Veteran reported being calm while falling without a parachute and then becoming anxious at the last minute and activating the reserve chute. He also reported a motor vehicle accident shortly before this incident, but he stated that he was generally uninjured in both accidents. (The Board notes that this is inconsistent with the service records, which show treatment for multiple injuries from the parachuting accident.) The Veteran denied stress specifically relating to the parachute accident but reported "high anxiety" beginning in the early 1990s, although he could not identify a specific precipitating factor. He also reported suffering from depression continually since the 1960s, with additional depression following the loss of his job in the 1990s due to anxiety. The Veteran emphasized feelings of guilt from not being deployed to Vietnam due to the parachuting accident. He denied any significant distress or other reexperiencing symptoms related specifically to the parachute accident. The Veteran recalled having flown as a pilot at some point many years after the accident, and stated that he became anxious and had flown infrequently since that time. The examiner stated that it was noteworthy that the Veteran had never jumped from a plane again. The examiner stated that the Veteran had sustained significant trauma since the military, namely the death of his son in a motorcycle accident two years earlier, and he was visibly distressed when asked about this more than at any other point during the interview. The examiner also noted that the Veteran's history was significant for alcoholism in his father and abuse in his childhood, as well as marital strain due to his wife's reported mental health difficulties, the death of his son two years earlier, substance abuse problems by another son, and unemployment since 1999. The examiner summarized the Veteran's current symptoms and past treatment with medications and counseling, as well as hospitalization on one occasion for thoughts of suicide, although those records are not available. The examiner diagnosed major depressive disorder recurrent moderate, and opined that the Veteran's symptoms were not consistent with a diagnosis of PTSD related to military trauma. Rather, the examiner stated that the Veteran dated the onset of his depressive symptoms over many years and attributed it to multiple life stressors. He further stated that the Veteran dated the onset of his anxiety to the early 1990s, but could not identify a precipitating factor. As such, the examiner concluded that the Veteran's anxiety and depressive symptoms could not be linked to the parachute accident in service. The Veteran is competent to report the timing of his observable mental health symptomatology, to include continuous symptoms such as depression and increased drinking after the parachuting incident in service, and anxiety related to airports after he stopped drinking. See Barr, 21 Vet. App. 307-08; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also finds these statements to be credible, as they are generally consistent with the other evidence of record. Significantly, the Veteran reported similar symptoms and timing during the December 1999 psychiatric evaluation for treatment purposes, which was nearly ten years before he sought VA service-connected compensation for acquired psychiatric disorder in March 2009. As such, this report is highly probative and reinforces the Veteran's credibility. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for medical treatment purposes may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care); cf. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (a witness's credibility may be impeached by a showing of interest, bias, or inconsistent statements). The Veteran also reported a similar history of events before, during, and after service, as well as the timing of his symptoms, for VA treatment purposes from 2001 forward, including prior to his claim for compensation. These mental health providers diagnosed PTSD, as well as depression and anxiety. The March 2009 letter from his Vet Center providers, which indicates a diagnosis of PTSD, is also based on treatment during that period. These records generally reflect consideration of the Veteran's entire history, including reports of childhood difficulties, alcohol use before and after the incident in service, and subsequent life stressors including the death of his son. As such, the Board finds them to be highly probative. These opinions as to both the nature and etiology of the Veteran's current psychiatric disability outweigh the August 2009 VA examiner's conclusions. In particular, the examiner does not appear to have considered the Veteran's lay reports of continuous symptoms prior to the 1990s, or his indication of problems specifically related to flying and airports. Although the Veteran has clearly had numerous psychosocial stressors over his lifetime, this does not negate the effects of his experiences during service. Although there may be some doubt as to whether the current disability is due to service, the evidence is in relative equipoise in this regard and, therefore, the benefit-of-the-doubt doctrine applies. In sum, when resolving all reasonable doubt in the Veteran's favor, there is medical evidence establishing a diagnosis of PTSD with related depression and anxiety, verification of the claimed in-service stressor, and a medical link between the current disability and the stressor. Accordingly, service connection for PTSD with related depression and anxiety is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.304(f). ORDER Service connection for PTSD with related depression and anxiety is granted. REMAND The Veteran contends that he incurred a TBI during service as a result of the parachuting accident, and that he currently has residuals of that injury. During the Board hearings, the Veteran testified that he lost consciousness and may have hit his head when he landed, and was told that his helmet "cracked open." The Veteran did not see the helmet because it was discarded, and he does not remember exactly what happened between hitting the ground and being transported to the hospital. The Veteran testified to current problems with memory, concentration, emotions, and voice, which he believes may be due to TBI. In addition, he reported frequent headaches, which he states have been present since the injury during service, although they have become more frequent recently. The Veteran also testified that a VA provider told him in approximately 2000 that he had a TBI. As discussed above, the Veteran's parachuting incident is documented in his service records, and it was in line of duty for the purposes of VA service-connected benefits. There are also witness statements relating to the line of duty investigation. Treatment records from the Frankfurt Army Hospital concerning his inpatient treatment for 18 days reflect multiple injuries and that he was under observation for head injury. Further, the Veteran complained of headaches for the prior two weeks in January 1966, and he also reported having frequent or severe headaches since the October 1965 parachuting incident in his January 1966 separation examination. The Veteran has not yet been afforded a VA examination to determine the nature and etiology of any current TBI residuals, to include headaches. There is a documented injury during service and treatment for headaches, and the Veteran has competently described continuing headaches and other current symptomatology that may be related to TBI. Further, he has reported that a provider diagnosed TBI. The Board notes that some of the reported problems may be associated with his mental health disorder for which service connection has been granted herein. As such, there is indication that a current disability may be related to service, and VA has a duty to provide a VA examination to help develop the Veteran's claim. See 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Additionally, during the 2011 hearings, the Veteran reported ongoing treatment at the VA Medical Center (MC) in Newington, as well as at the VA Outpatient Clinic (OPC) in Willimantic. He also testified that a VA provider diagnosed TBI in approximately 2000. The claims file contains VA treatment records dated from April 2001 through September 2009, but the Veteran's testimony suggests that there may be additional relevant VA treatment records. Further, during the December 1999 mental health evaluation, the Veteran reported having a "mini-stroke" in 1984 with inpatient treatment at Putnam Hospital, Windham Hospital, and University of Connecticut (UCONN) Hospital. These records could be relevant to his claim for TBI or cognitive difficulties. As such, VA has a duty to obtain them. During the August 2009 VA mental health examination, the Veteran stated that he had not worked gainfully since 1999, and that he had been receiving disability benefits from the Social Security Administration (SSA) for approximately six years. VA also has a duty to obtain these records. 38 U.S.C. § 5103A; Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide authorization to obtain all records of treatment since separation from service for any possible symptoms of TBI, to include headaches, cognitive difficulties or other brain dysfunction. In particular, authorization should be sought with regard to records of inpatient treatment at Putnam Hospital, Windham Hospital, and University of Connecticut Hospital in 1984. If the Veteran fails to provide any necessary authorization, tell him that he can submit the records himself. 2. Obtain all records of VA treatment (including any diagnostic tests) dated from 2000 to 2001 and since September 2009. 3. Request copies from the SSA of all determinations, medical evidence, and treatment records associated with the Veteran's disability benefits. 3. If any requested records cannot be obtained, advise the Veteran and inform him of the efforts made to obtain the records and of any further actions that will be taken with regard to his claim. Efforts to obtain records from Federal agencies, including VA and SSA, must continue until they are obtained, unless it is reasonably certain that such records do not exist or further efforts to obtain them would be futile. There must be not less than two requests for records not in Federal custody, unless it is made evident by the first request that a second request would be futile. 4. Thereafter, schedule the Veteran for a VA examination to determine whether he has current TBI residuals or headaches as a result of an injury in service. The examiner should review the entire claims file including a copy of this remand, and such review should be noted in the examination report or addendum. The examiner should respond to the following: (a) Does the Veteran currently have TBI residuals? In particular, are any current headaches or problems with memory, concentration, emotions, and voice due to TBI? In the alternative, are any current problems with memory, concentration, emotions, and voice related to the Veteran's now service-connected PTSD with related depression and anxiety? (b) Are any current TBI residuals at least as likely as not (probability of 50 percent or more) due to injury during military service, to include the October 1965 parachuting incident? (c) If any current headaches are not due to TBI during service, are they at least as likely as not otherwise related to service, to include the treatment for headaches in January 1966? Reasons must be provided for any opinion offered. These should reflect consideration of all lay and medical evidence. The Veteran should be deemed competent to report injuries and symptoms. His reports cannot be rejected merely because there is an absence of supporting clinical evidence. If any requested opinion cannot be offered without resorting to speculation, the examiner should explain why a non-speculative opinion cannot be offered; and whether the inability to provide the needed opinion is due to the absence of any evidence or is due to the limits of scientific or medical knowledge. 5. If the claim remains denied, issue a supplemental statement of the case. Then, the case should be returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs