Citation Nr: 1306372 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 12-11 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a left eye disorder. 3. Entitlement to an initial compensable (increased) evaluation for the hemorrhoids disability. 4. Entitlement to an initial compensable (increased) evaluation for the gastroesophageal reflux disease (GERD) disability. 5. Entitlement to a 10 percent evaluation based on multiple, noncompensable service-connected disabilities under 38 C.F.R. § 3.324. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, Spouse and Daughter ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appellant had active service in the United States Army from March 1943 to October 1945. He participated in the landings at Normandy and in the Battle of the Bulge; he was awarded the Combat Infantryman Badge (CIB) and the Silver Star Medal for gallantry in action in Germany in March 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin which denied the appellant's claims of entitlement to service connection for posttraumatic stress disorder (PTSD) and a left eye disorder. The RO also granted service connection for hemorrhoids and gastroesophageal reflux disease (GERD) and assigned noncompensable evaluations for each one of those disabilities; the RO denied entitlement to a compensable rating based on multiple, noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324. In October 2012, a Travel Board hearing was held in Milwaukee before the undersigned who is the Veterans Law Judge making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102. A transcript of the hearing testimony is in the claims file. It is noted that the appellant appealed the initial zero percent ratings that were assigned to the hemorrhoid and gastroesophageal reflux disabilities after service connection was granted. As such, the guidance of Fenderson v. West, 12 Vet. App. 119 (1999) is for application. Thus, the issues are as set out on the title page. The issues of entitlement to service connection for a left eye disorder, entitlement to increased initial disability ratings for the hemorrhoids and GERD disabilities and entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities are addressed in the REMAND portion of the decision below and those issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The appellant was awarded the Combat Infantryman Badge (CIB) and the Silver Star Medal in association with his WWII combat service in the European Theater. 2. The appellant has PTSD which is medically attributed to stressors he experienced in combat during his active service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefit sought on appeal (service connection). Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and need not be discussed further. II. The Merits of the Appeal In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in a current disability was incurred during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The appellant contends that he is entitled to service connection for PTSD based on his WWII Army experiences in combat from Normandy through Germany. In testimony and handwritten statements received from the appellant, episodes of combat that could have killed the appellant were described. A December 2012 VA psychiatric examination report indicates that the appellant's war traumas included having seen numerous causalities while in combat situations. 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, 1131. That an injury or disease occurred in service is not enough; there must be 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). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation. However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d at 1372; see also Buchanan, 451 F.3d at 1336 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can also be competent and sufficient to establish a diagnosis and nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record, not merely the diagnosis mentioned by the claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). The Board notes that the diagnostic criteria for mental disorders, including those related to stressors, set forth in THE AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV) have been adopted by VA. 38 C.F.R. § 4.125. According to those criteria, a diagnosis of PTSD requires that a veteran be exposed to a traumatic event and a response involving intense fear, helplessness, or horror. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and the person's response involved intense fear, helplessness, or horror. See Cohen v. Brown, supra. The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Id. The occurrence of a stressor is an adjudicatory determination. In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.303(a), 3.304; see Hayes v. Brown, 5 Vet. App. 60, 66 (1993). As previously noted, the appellant served in the Army in the European Theater during WWII from Normandy to Germany and he was awarded the Combat Infantryman Badge (CIB) and the Silver Star Medal. It is clear, then, that the appellant is a combat veteran. He contends that his current psychiatric symptomatology is from PTSD that is etiologically related to his combat experiences in WWII. The appellant was afforded a VA psychiatric examination in August 2010. The examining physician reviewed the appellant's medical records and noted that the appellant had not been diagnosed with PTSD or any other mental health disorder. The appellant denied past and present mental health treatment. The examiner declined to render any Axis I diagnosis and stated that there were no findings of clinically significant social or occupational impairment. A letter from a private physician, dated in October 2012, indicates that the appellant had been exhibiting symptoms of PTSD for several years. These symptoms included depression, withdrawal from family, nightmares and obsessing about the war. The appellant was afforded another VA psychiatric examination in December 2012; the examining psychiatrist reviewed the appellant's medical records. In terms of the diagnostic criteria for PTSD found in the DSM-IV, the psychiatrist noted that the appellant indicated he experienced events that involved actual or threatened death or serious injury and that his response involved intense fear, helpless and horror. The appellant has recurrent and intrusive distressing recollections of these events and he also has recurrent distressing dreams of these events. The appellant tries to avoid activities, places or people that arouse recollections of the trauma. He has markedly diminished interest or participation in significant activities and he feels detached or estranged from others and he has a restricted range of affect. In addition, the psychiatrist noted that the appellant has difficulty falling or staying asleep, plus irritability or angry outbursts, plus hypervigilance and exaggerated startle response. The examining psychiatrist rendered an Axis I diagnosis of PTSD. The psychiatrist stated that the appellant's condition met the DSM-IV diagnostic criteria for PTSD and that the PTSD arose from the appellant's combat experiences during his time in service. The examiner further stated that the appellant's PTSD symptoms have been present more or less continuously since 1945. If a veteran has received a diagnosis of PTSD from a competent medical professional, VA must assume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to adequacy of the symptomatology and the sufficiency of the stressor. Cohen v. Brown, supra, at 153. VA can only reject such a diagnosis on a finding that the preponderance of the evidence is against (1) the PTSD diagnosis, (2) the occurrence of the in-service stressor, or (3) the connection of the current condition to the in-service stressor. The adequacy of a stressor, sufficiency of symptomatology, and diagnosis are all medical determinations. Cohen, 143-144. Further, because interpretative doubt on all material issues is to be resolved in the appellant's favor, the Board finds him to have been diagnosed with PTSD. 38 U.S.C.A. § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail on that issue). Even when a physician or other health care professional diagnoses the appellant as having PTSD, the Board is still not required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Granting of service connection is predicated upon the outcome of the remaining two analytical steps below. The second element of service connection is credible supporting evidence that the claimed in-service stressor(s) occurred. The existence of an event alleged as a "stressor" that caused PTSD is an adjudicative, not a medical, determination. Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). As noted above, for a stressor to be sufficient for PTSD, the stressor must meet two requirements: (1) a person must have been "exposed to a traumatic event" in which the person "experience, witnessed, or was confronted with an event or events that involved actual death or serious injury, or threat to the physical integrity of self or others," and (2) "the person's response must have involved intense fear, hopelessness, or horror." The sufficiency of the stressor is a medical determination, and adjudicators may not render a determination on this point without independent medical evidence. West v. Brown, 7 Vet. App. 70 (1994). In this case, based on the appellant's military occupational speciality (light machine gunner) and the fact that he was awarded the CIB and the Silver Star Medal for his combat service in the European Theater in WWII, VA concedes that the appellant was exposed to in-service traumatic stressors. Thus, the second element of service connection for PTSD has been satisfied. The third element of service connection is a link, established by medical evidence, between current symptoms and the claimed in-service stressor. The medical evidence of record indicates that the appellant's PTSD has been causally linked by qualified personnel to his WWII Army service in the European Theater, including documented valorous participation in combat with the enemy. Viewing the evidence in the light most favorable to the Veteran, and with consideration of 38 C.F.R. § 3.304, the positive evidence of record consists of the fact that the appellant has been diagnosed with PTSD by a psychiatrist, that medical evidence reflects that he has reported experiencing war traumas such as observing causalities when he was in WWII, and that the appellant was awarded the CIB and the Silver Star Medal in association with his WWII combat service in Europe. The Board concludes that evidence for and against the claim for service connection for PTSD is at least in approximate balance. In other words, the Board finds that full consideration of the material evidence of record indicates that the appellant has a psychiatric disorder diagnosed as PTSD that is causally related to his active service. After resolving any doubt in the Veteran's favor, the Board grants service connection for PTSD. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. REMAND A determination has been made that additional evidentiary development is necessary with respect to the remaining issues on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below. The appellant contends that he currently suffers from left eye pathology that he attributes to his having been struck in the left eye by a tree branch while on night maneuvers during his stateside combat training. Review of the evidence of record indicates that the appellant has been treated for cataracts, as well as macular degeneration. In 1999, he underwent an excision of a cataract in the left eye, but the associated records have not been included in the claims file. In addition, the appellant has been treated for left eye disorders by a private physician whose records have not been included in the claims file. Furthermore, the only VA treatment records included in the claims file are dated in August 2010. The appellant also contends that he currently suffers from multiple disabling symptoms from both his hemorrhoids disability and his GERD disability. Review of the record reveals that the appellant has been in receipt of private treatment for gastrointestinal complaints. However, the claims file does not include any related treatment records; the only documentation of record from that physician consists of an October 2012 letter relating to another matter. Because such records could reflect the extent, severity, onset date and etiology of the claimed pathology, VA is therefore on notice of records that may be probative to the claim. Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the AMC/RO should obtain all of the relevant VA treatment records not already of record, as well as any relevant private post-service medical treatment records, and associate all of those records with the claims file. In addition, as the VA medical opinion of record relating to the left eye was based on incomplete medical records, it is of little or no probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). Accordingly, a new medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Finally, the appellant was last afforded VA hemorrhoid and gastrointestinal examinations in mid-2010 - more than two years ago. The appellant and his representative have indicated in written statements and testimony that these disabilities have worsened since the 2010 VA examinations were conducted. When a veteran indicates that his disability has increased since his last VA examination, a reexamination should be scheduled. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding an examination necessary where a Veteran alleged worsening). Therefore, additional VA examination is necessary. These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board's task is to make findings based on evidence of record--not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Finally, in the decision above, the Board granted service connection for the appellant's PTSD. The RO has yet to assign a rating for that disability and the assignment of a compensable rating would render the 38 C.F.R. § 3.324 claim moot. Therefore a decision by the Board on the 38 C.F.R. § 3.324 claim would at this point be premature. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991). Accordingly, to ensure that VA has met its duty to assist in developing the facts pertinent to the claims on appeal and to afford full procedural due process, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Obtain all of the appellant's outstanding private records and associate them with the claims file. Obtain all outstanding VA medical treatment records as well, if any. In particular, obtain the private inpatient and/or outpatient treatment records from the appellant's 1999 left eye cataract surgery; all records from Dr. Wilkens; and all records from Dr. Jewett. 3. To the extent an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and his representative must also be informed of the negative results and be given opportunity to secure the records. 4. After completing any additional notification and/or development action deemed warranted by the record, arrange for review of the appellant's claims file by an ophthalmologist in light of the questions of etiology presented in this case. The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to the reviewer. If the reviewer does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on the reviewer must be printed and associated with the paper claims file so they can be available for review. The reviewer must construct a detailed written history of the nature and onset of the appellant's left eye pathology, including a discussion of the epidemiology and symptomatology of the appellant's cataract and macular degeneration. The eye specialist is to determine the onset, nature, clinical significance and etiology of any documented left eye disorder. It is requested that the examiner determine whether any of documented disorders of the left eye, including cataract and macular degeneration, are etiologically related to the appellant's military service. Based on the findings of the review of the medical evidence in the claims file, the reviewer should express her/his opinions concerning the questions below: a. Whether the appellant's current left eye pathology is causally or etiologically related to his period of military service (March 1943 to October 1945) or to some other cause or causes? (It is not necessary that the exact causes other than apparent relationship to some incident of service be delineated.) b. Whether the appellant's current left eye pathology is related to symptoms and signs that may have occurred within one year of his service separation in October 1945? and c. Whether any portion of the appellant's post-service left eye pathology is attributable to the tree branch injury described by the appellant, including by way of aggravation or earlier onset, or to some other cause or causes or combination thereof? In assessing the relative likelihood as to origin and etiology of the claimed left eye pathology, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed pathology is causally or etiologically related to the appellant's service, including any left eye trauma, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 the conclusion as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with that needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's current claimed left eye pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. If the reviewer determines that an examination is needed before the requested opinions can be rendered, schedule the appellant for such an examination. 6. After completing any additional notification and/or development action deemed warranted by the record, schedule the appellant for an appropriate medical examination to determine the nature, severity, and extent of the service-connected hemorrhoids and GERD disabilities in accordance with the applicable rating criteria. The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available to the examiner must be printed and associated with the paper claims file so they can be available for review. The examiner must indicate that said review was accomplished. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must state whether the appellant has large or thrombotic hemorrhoids that are irreducible with excessive redundant tissue, whether there is persistent bleeding with secondary anemia and whether there are fissures. The VA examiner must comment on any symptoms such as weight loss, changes in appetite, pain, vomiting, hematemesis, melena, anemia, dysphagia, pyrosis and/or regurgitation, as per the applicable rating criteria, as well as describe the impact, if any, of the appellant's condition upon his capacity for gainful employment. The examiner must characterize the degree of impairment of health using the terms such as "severe" or "considerable." 7. Review the claims file to ensure that all development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the medical opinion and examination reports. If any report does not include fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the provider for corrective action. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 8. Assign a rating for the appellant's service-connected PTSD disability and then readjudicate the issue of entitlement to a compensable rating based on multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324, unless the issue should become moot. 9. Then re-adjudicate the remaining issues on appeal. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories. 10. If any benefit sought on appeal remains denied, provide the appellant and his representative a Supplemental Statement of the Case (SSOC) and allow an appropriate period of time for response. The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs