Citation Nr: 1307802 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 11-32 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for malaria. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from March 1989 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction rests with the RO in Los Angeles, California, from which the appeal was certified. The Veteran and his friend testified at a March 2013 hearing by the undersigned held by videoconference from the RO. A transcript of that hearing is associated with the claims file. At the hearing, it was noted that the Veteran's power of attorney (POA) of record was the Tennessee Department of Veterans' Affairs, notwithstanding that the Veteran now resided and the hearing was being held in the Los Angeles, California area. The Veteran indicated at the hearing that he wished to proceed at the hearing without a representative from that organization present. The Veteran's claim for service connection for PTSD has been recharacterized as a claim for service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered to be within the scope of the filed claim). At the hearing the Veteran testified that he was unemployable due to his PTSD. In light of the Board's grant of service connection for this disability the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is referred to the RO for appropriate action. The appeal was advanced on the Board's docket at the March 2012 Board hearing, based on financial hardship, pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The issue of entitlement to service connection for malaria was addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The evidence of record reflects a current diagnosis of posttraumatic stress disorder (PTSD) that is based on a verified in-service stressor. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS At the hearing, the Veteran clarified that if the Board determined that service connection was warranted for PTSD that would satisfy his appeal of his psychiatric disability claim. In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); 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, unless the stressor is related to a veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f); see also 75 Fed. Reg. 39,843 (2010). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran asserts that he has PTSD as a result of an incident occurring in May 1990, during service. As noted in his March 2013 Board hearing testimony, the Veteran reported that in May 1990, he witnessed hazing of a private first class (PFC) who was new to their unit. The hazing turned violent, and the Veteran suspected that the PFC was not handling the emotional stress of the situation well. He reported his suspicions to his command, to include his belief that the PFC should not be entrusted with firearms. Shortly thereafter, the PFC attempted to commit suicide by self-inflicted gunshot wound. The Veteran asserted that he attempted to save the PFC's life, but in doing so, may have caused the PFC to die before additional medical help could arrive. The Veteran blames himself for the PFC's death and testified that he has never been able to recover from the emotional trauma. To that end, the Veteran argues that he experienced a decline in his ability to adequately complete his military occupational responsibilities after the incident occurred, and that since the incident he has experienced many symptoms of PTSD including but not limited to suicidal ideations. The Veteran's service treatment records do not show that he reported psychiatric symptoms or that a psychiatric disorder was diagnosed. However, it is important to note that in his service personnel records, it is noted that his reenlistment code is RE-3, which tends to indicate a lower likelihood that the Veteran would be accepted for reenlistment should he apply. Further, the lack of evidence confirming the Veteran's assertions of his decrease in occupational duties performance does not necessarily mean that it did not occur. See, e.g. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, his service personnel records show that he was stationed at Subic Bay, Republic of the Philippines, where the Veteran asserts his stressor event occurred, from September 1989 at February 1991. An additional February 1991 service personnel record lists both the Veteran and his friend C.B. as being in the same unit and stationed at Subic Bay. The post-service evidence reflects that at an October 2010 PTSD evaluation inventory, the Veteran's military trauma score was 59, reflecting that he met the military trauma score cutoff for PTSD. More specifically, on discharge from a VA inpatient mental health facility in October 2010, PTSD was diagnosed based on the stressor event described above. Repeated diagnoses made through March 2011 also assigned a diagnosis of PTSD and related it to the May 1980 stressor event. These diagnoses are both competent and probative, as they are based on a review of the Veteran's entire medical history and complete mental health status evaluations to include the specific criteria for PTSD as outlined in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM-IV). Further review of the record in the aggregate reflects that the Veteran has other coexisting psychiatric conditions, but repeatedly accounts for the onset of the Veteran's symptomatology after this in-service event occurred. Further, the lay evidence establishes that the claimed stressor event occurred. The Veteran's emotional testimony at his March 2013 Board hearing was an identical reiteration of the stressor event, both in his lay statement submitted to VA, as well as during the course of treatment with VA clinicians. The record also does not reflect discrepancies or inconsistencies to discredit the Veteran's allegations. See, c.f., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (concluding that the Board may reject statements of a veteran if rebutted by the overall weight of the evidence). Moreover, as noted above, service personnel records establish that the Veteran and his friend C.B. served together in the same Marine unit in Subic Bay at the time of the stressor event. To support the Veteran's claim, C.B. submitted a statement which was received by VA in July 2010 and confirms the nature and details of the stressor incident as described by the Veteran, as well as noting that the Veteran had "never seemed to be able to work through" the trauma. This lay statement is especially probative as C.B. is a law enforcement officer in a municipal police department near the Veteran's home, and issued the statement on official letterhead. The Board also finds that these factors increase the credibility of the statement. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (holding that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). In light of the foregoing, the Board finds that the Veteran has a current diagnosis of PTSD that resulted from the claimed stressor event of the death of his fellow Marine in May 1990. The lay evidence, including the Veteran's statements of record and his testimony at the March 2013 Board hearing, as well as the lay statement of his friend and member of the same Marine unit, credibly establish the occurrence of the stressor event. On that basis, the Board finds that the criteria for service connection for PTSD are met, such that a grant of service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND The Veteran has asserted that he was treated for malaria in service, thus warranting service connection for any active disease and/or residuals. During his Board hearing, he testified that he received treatment at the "Q.B." military hospital in Subic Bay, Republic of the Philippines during service, and at a private hospital in San Clemente, California, in 1994 for a relapse of malaria. These records are not associated with the claims file, and must be obtained. Further, despite the Veteran's credible statements as to his in-service treatment for malaria, no VA examination has been provided to the Veteran in conjunction with his claim. On remand, a VA examination must be accomplished to determine indicators of malaria exposure as well as any current malaria residuals. Accordingly, the issue of entitlement to service connection for malaria is REMANDED for the following actions: (The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. After obtaining authorization from the Veteran, contact the San Clemente, California, private hospital where the Veteran was treated for malaria in 1994 and request a copy of any relevant records. Further, request copies of all records of treatment of the Veteran at "Q.B." military hospital in Subic Bay, Republic of the Philippines, during the time the Veteran was stationed there (September 1989 to February 1991). Document all attempts to secure this evidence in the claims file. If, after making reasonable efforts to obtain named records the RO is unable to secure same, notify the Veteran and (a) identify the specific unavailable records; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. Give the Veteran an opportunity to respond. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any residuals of malaria that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records and lay statements. If there is evidence of malaria residuals, the examiner must rule in or exclude a diagnosis of malaria, to include determining whether there has been a pervious history of the disease. Should indicate whether it is at least as likely as not that the Veteran any diagnosed residual is causally or etiologically related to the Veteran's active duty service. In offering this opinion, the examiner must consider the Veteran's testimony of having had malaria in service and a recurrence of the disease in 1994. A clear rationale for all opinions should be provided, citing to claims file documents and/or clinical findings as appropriate. 3. Notify the Veteran that his assistance in reporting for any scheduled examination and cooperating in the development of the claim is essential, especially in light of his agreement to do so at his March 2013 Board hearing. If the Veteran does not report for a scheduled examination, associate a copy of the letter notifying the Veteran of the examination with the claims file, and indicate if that notice letter was returned as undeliverable. 4. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case and allow an appropriate period of time for response. Then, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs