Citation Nr: 1307187 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-21 754 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder/depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from January 2003 to May 2004, to include service in Iraq from January 2003 to July 2003, and from September 2003 to January 2004. He also had a previous period of service from December 1986 to December 1997. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2007 rating decision in which the RO denied service connection for PTSD. In October 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2010. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2010. Consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held that service connection for PTSD includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record, the issue on appeal was expanded as shown on the title page to include entitlement to service connection for an acquired psychiatric disorder, other than PTSD. For purposes of clarification, the Federal Circuit has recognized that separately diagnosed psychiatric conditions can be service connected, but cannot not be separately rated unless they resulted in different manifestations. See Amberman v. Shinseki, (570 F.3d 1377, 1381 (Fed. Cir. 2009). In November 2011, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. During the hearing, additional evidence was submitted for the record which was accompanied by a waiver of initial RO consideration of the evidence. A March 2013 review of the Virtual VA paperless claims processing system reveals no additional documents pertinent to the present appeal. The Board's decision addressing the claim for service connection for PTSD is set forth below. The claim for service connection for an acquired psychiatric disorder other than PTSD, is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. As a final preliminary matter, the Board noted that, in July 2010, a service connection claim for a left knee condition, secondary to a service-connected right great toe disability, was raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ)-here, the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Resolving all reasonable doubt in the Veteran's favor, the record reflects a valid diagnosis of PTSD during the pendency of the appeal that is related to an in-service stressor, the occurrence of which is supported by credible evidence. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for service connection for PTSD, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). At the outset, the Board notes that that the Veteran's STRs for both the service periods from December 1986 to December 1997, and from January 2003 to May 2004, are incomplete/largely unavailable in this case. A formal finding to this effect was provided for the record and for the Veteran in October 2009. In a case such as this where it appears that STRs are unavailable and/or incomplete, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of- the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board must point out, however, the O'Hare precedent does not raise a presumption that the missing medical records would, if they still existed, necessarily support the claim. Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran filed a service connection claim for PTSD in June 2006, indicating that this condition began in February 2003. The claim was denied in a February 2007 rating action, as PTSD had not been diagnosed and the Veteran had not reported having any service-related stressors. In 2007, various STRs dated from 1986 to 2004 were added to the file by the Veteran. December 1986, April 1991, February 1997 and May 2000 examination reports indicate that psychiatric evaluation was normal and that the Veteran denied having depression, trouble sleeping, or nervous trouble. In May 2007, the Veteran provided a stressor statement to the effect that in February 2004, he had a dream that his family was in danger of being kidnapped, following which he woke up sweating and gasping. The he believed to have heard noises around his house and grabbed his shotgun, but nothing was there and he could not return to sleep. The file contains VA records dated in 2006 and 2007. He was initially seen in April 2006 at which time he complained of symptoms of anger and sleep impairment. Insomnia and rule out depression were diagnosed. In August 2006, PTSD and depression screens were positive. In September 2006, he reported having nightmares about being shot and killed. At that time, it was noted that he experienced memories of Iraq and symptoms of anxiety and anger were recorded. Symptoms of PTSD and depression were assessed. When seen in April 2007, an entry indicated that the Veteran was having nightmares of dying; PTSD and major depression were diagnosed. In a stressor statement provided in November 2007, the Veteran reported that in April 2003, while traveling south toward the border of Iraq and Kuwait (in Safwan), the convoy he was traveling with came under attack receiving small arms fire and mortar rounds. Information on file reflects that he was serving with the 377 TSC, Trans Dept, Det 11, when this event occurred. He indicated that one soldier from the 800th MP BDE was injured and one vehicle was disabled. He stated that they returned fire, picked up the stranded soldiers, left the area, and stopped in Kuwait to treat the wounded and report the incident. In a separate statement from the Veteran dated in November 2007, he mentioned that he had dreams of this incident often. The file contains a March 2008 research of stressor verification memorandum to the JSRRC coordinator. It was noted that according to information provided by www.globalsecurity.org, fighting around Iraq was heavy early in the month of April 2003 in all regions, with several incidents of attacks on convoys occurring during this month; but none in Safwan, and none involving the 377th TSC or 800th MP. It was mentioned that the 377th TSC was stationed in southern Iraq, near the Kuwait border during this period. It was concluded that it was possible that the claimed stressor occurred, but the particular stressor could not be verified. In October 2008, a statement in support of the Veteran's PTSD claim was received by a military comrade attached to the 377th TSC. He indicated that while serving as a night shift Battle Captain for the 377th TSC, he received a report of a military convoy being attacked while travelling southbound on a main supply route. He indicated that the Veteran and others were among the ambushed convoy and that a formal report was prepared. A March 2008 VA psychiatric note indicates that the Veteran had a history of anxiety and diagnosed depression which he found had been going on since he was in Iraq in 2003. The report indicated that the Veteran had served in Iraq for 13 months and was involved in escorts/transportation, also indicating that he was involved in combat. Mild PTSD and major depressive disorder were diagnosed. The file also contains a Unit Risk Reduction Certification (date unknown) indicating that the Veteran had been involved in a serious accident during deployment and was bothered by events/combat while in theater. It was determined that the Veteran would need to have a case manager assigned due to stress disorder. The Veteran provided testimony at a Board videoconference hearing held in November 2011. The Veteran indicated that during service, he had mental health issues, was treated at a clinic in Kuwait, and was prescribed medications. He testified to the effect that in April 2003, a convoy he was travelling with came under attack from small arms fire in the city of Safwan. He mentioned that immediately after this event, he started experiencing health issues such as sleep impairment and anxiety, and indicated that PTSD had been diagnosed. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether the veteran engaged in combat with the enemy, as well as whether the claimed in-service stressor is related to such combat; or, if not, whether there is objective evidence to verify the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also 38 U.S.C.A. 1154(b) (West 2002). For veterans who have served in combat, lay testimony alone may be accepted to establish the occurrence of a claimed in-service stressor as long as "the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service" and there is no "clear and convincing evidence to the contrary." 38 C.F.R. § 3.304(f)(2). The Board notes that, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010) and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. 38 C.F.R. § 3.304(f)(3) now provides that, if a stressor claimed by a veteran is "related to the veteran's fear of hostile military or terrorist activity," and a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted), confirms that the claimed stressor is 1) adequate to support a diagnosis of PTSD, and 2) that the veteran'' symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Moreover, the amendment provides that, "fear 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. Id. In this case, VA records of 2008 reflect that a DSM-IV diagnosis of PTSD has been made. The Board notes that a record of March 2008 essentially linked that diagnosis to the Veteran's 13 months of serving in Iraq, during which time his primary duties involved escorts/transportation. Accordingly, the critical issue in this case involves establishing the occurrence of the claimed in-service stressor supporting the PTSD diagnosis. Here, while the Veteran did not engage in combat with the enemy, was not a POW, and has not asserted any stressors related to terrorist activity, his experience of having the convoy he was traveling with coming under attack, receiving small arms fire and mortar rounds, while traveling south toward the border of Iraq and Kuwait (Safwan) in April 2003 arguably falls within the new provisions of 38 C.F.R. § 3.304(f)(3) regarding hostile military activity. In March 2008, stressor verification was sought through JSRRC. At that time, it was noted that according to information provided by www.globalsecurity.org, fighting around Iraq was heavy early in the month of April 2003 in all regions, with several incidents of attacks on convoys occurring during this month; but none in Safwan, and none involving the 377th TSC or 800th MP. It was mentioned that the 377th TSC was stationed in southern Iraq, near the Kuwait border during this period. It was concluded that it was possible that the claimed stressor, occurred but the particular stressor could not be verified. In this regard, the Board point out that while specific verification could not be made, requiring corroboration of every detail of a veteran's claimed stressors defines "corroboration" far too narrowly. See Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Significantly, the JSRRC did establish at minimum, that the 377th TSC to which the Veteran was attached was stationed in southern Iraq, near the Kuwait border during April 2003 and that fighting around Iraq was heavy early in the month of April 2003 in all regions, with several incidents of attacks on convoys occurring during this month; at least suggesting the possibility that the stressor did in fact occur as reported. See Pentacost v. Principi, 16 Vet. App. 124, 128 (2002). In support of the claim, the file contains a supporting statement from a military comrade attached to the 377th TSC, indicating that while serving as a night shift Battle Captain for the 377th TSC, he received a report of a military convoy being attacked while travelling southbound on a main supply route. He indicated that the Veteran and others were among the ambushed convoy and that a formal report was prepared. In essence, the Veteran's lay statements regarding the April 2003 attack on his convoy in Safwan have now been verified with corroborating evidence, and further analysis of whether the Veteran meets the criteria of 38 C.F. R. § 3.304(f)(3) is deemed unnecessary. After careful consideration of all procurable and assembled data, when a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 53-56. Considering all evidence in its entirety and resolving any doubt in favor of the Veteran, the April 2003 in-service stressor event has been sufficiently corroborated to provide the credible supporting evidence needed to show that the claimed in-service stressor required under 38 C.F.R. § 3.304(f) actually occurred. 38 C.F.R. §§ 3.102; 3.304(f). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Because the stressor which occurred in April 2003 in conjunction with the Veteran's primary military duties in escorts/transportation have been shown through medical evidence to be linked to the Veteran's diagnosis of PTSD, for which he has received a medically sound DSM-IV diagnosis, this provides the third and final necessary element for establishing service connection for PTSD. See 38 C.F.R. § 3.304(f). Accordingly, given the facts noted above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD are met. 38 C.F.R. § 3.304(f). ORDER Service connection for PTSD is granted. REMAND The Board's review of the claims file reveals that further RO action on the claim remaining on appeal is warranted. By virtue of the decision and order above, the Veteran has been granted service connection for PTSD. However, VA records reflect that an additional psychiatric diagnosis of major depressive disorder has been made in this case. To date, the Veteran has not been afforded a VA examination to obtain a medical opinion as to whether any psychiatric disability other than PTSD, to include major depressive disorder, is/are medically-related to either to his active duty service or to his service-connected PTSD, and the claims file does not otherwise include medical information in this regard. Under the circumstances of this case, the Board finds that such an examination and opinion would be helpful in resolving the matter remaining on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the Veteran to undergo VA examination by a psychiatrist or psychologist, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim remaining on appeal. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to obtaining arranging for the Veteran to under further examination, the RO should obtain and associate with the claims file all outstanding VA treatment records. The record indicates that the Veteran has been receiving psychiatric treatment through the SE Louisiana Veterans Health Care System, and the claims file contains treatment records from these facilities through mid-October 2008. Hence, more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the RO should obtain from the SE Louisiana Veterans Health Care System all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran from October 2008, forward, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Also, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. The RO should obtain from the SE Louisiana Veterans Health Care System all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated from October 2008, forward. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA examination, by a psychiatrist or psychologist at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies, to include psychological testing, if warranted, should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current psychiatric disability(ies) other than PTSD, to particularly include major depressive disorder. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability (a) had its onset in or is otherwise medically related to service, to include the conceded in-service stressor; or (b) was caused or is aggravated (worsened beyond natural progression) by the Veteran's service-connected PTSD. If aggravation by service-connected PTSD is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. Even if the examiner determines that diagnosed psychiatric disability other than PTSD is not medically-related to service or to service-connected PTSD, he or she should indicate whether it is medically possible to distinguish the symptoms attributable to the Veteran's service-connected PTSD from those attributable to nonservice-connected psychiatric disability. The examiner should set forth all examination findings along with complete rationale for the conclusions reached in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs