Citation Nr: 1310022 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-47 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for cognitive disorder, to include as secondary to the service-connected acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION 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 Veteran served on active duty with the United States Air Force from April 1955 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to service connection for PTSD. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record reflects diagnosis of several mental disorders, and so the issue has been recharacterized to expand the claim to consider all of them. This includes a cognitive disorder which is closely entwined with the Veteran's psychiatric complaints. The Veteran testified at a July 2011 hearing held before the undersigned Veterans Law Judge via videoconference from the RO. A transcript of the hearing is of record. In November 2011, the Board remanded the appeal for further development; requested action having been taken, the matter is returned to the Board. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was physically assaulted in service. 2. A currently diagnosed acquired psychiatric disorder, other than the cognitive disorder, is etiologically related to the in-service assault. CONCLUSION OF LAW The criteria for service connection of an acquired psychiatric disorder, other than a cognitive disorder, are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection The Veteran seeks service connection for an acquired psychiatric disorder, claimed as PTSD, based on alleged personal assaults in service. The Veteran maintains that while stationed in Misawa, Japan, he was the victim of several "blanket parties," in which other airmen covered him with a blanket and beat him with sock-wrapped soap for short periods. He also alleges that he was pushed out of the back of a truck on one occasion. He is not sure of the cause for the assaults, but does cite racial tension as a possible motivation. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131. "Service connection" basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming with the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed.)) (DSM-IV); 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. 38 C.F.R. § 3.304(f). If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. A medical opinion may also serve to corroborate the allegations, where an appropriate professional opines that the evidence indicates the assault occurred. 38 C.F.R. § 3.304(f)(5). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment and personnel records are unavailable; the Veteran's records were stored in that section of the National Personnel Records Center (NPRC) destroyed by fire in 1973. No alternate official records have been located. The Veteran was advised that his records were unavailable, and in response he has supplied lay statements regarding his alleged stressors, and a qualified VA doctor has offered an opinion on the possibility of the occurrence. The Board concludes that the alleged blanket party assaults did occur. While there are no corroborating contemporaneous records, the Veteran's alternate submissions tend to support his allegation, and there is no contradictory evidence. The Veteran's statements regarding the assault are themselves competent evidence of the events. He is capable of reporting his observations and events as experienced through his five senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Since April 2005, several years prior to making any claim for benefits based on a psychiatric illness, the Veteran has consistently described the occurrence of the blanket parties in VA treatment. Another member of his therapy group reported in a July 2011 statement that the Veteran reacted with yelling and screaming when the lights were turned out; he associated this with the blanket parties. The lights were turned out prior to each assault. Finally, a VA physician opined that the Veteran was not malingering and she believed that he was assaulted in service as he alleged. It is true that prior to April 2005 there was no allegation regarding an assault in the form of a blanket party. The Veteran had reported falling from a truck as early as April 2002, but did not report that he was pushed until January 2003, when he indicated at a Decision Review Officer (DRO) hearing regarding another claim that a group of white servicemen had pushed him, then threatened him if he reported them. The Veteran maintains that he had dealt with his mental health problems through prayer, and only came to deal with events after being seen at VA. His report is consistent with the timeline of treatment in VA records, and while a negative inference may be drawn from the absence of complaints or treatment for an extended period, Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), any such inference here is outweighed by the supporting evidence. With the establishment of an in-service stressor event, the analysis turns to consideration of a current disability and a nexus to service. VA treatment records document continued diagnosis of and treatment for a variously diagnosed psychiatric illness since February 2005, when a PTSD screen was positive and the Veteran was referred for further evaluation. He was formally diagnosed and admitted to a treatment program in December 2006. Anxiety, an adjustment disorder and depressive disorders have also been diagnosed; current records indicate a diagnosis of a major depressive disorder. At a January 2012 VA examination, the examiner reviewed the claims file and interviewed the Veteran. The Veteran again described the in-service assaults, and the examiner determined that such would be sufficient to cause PTSD. However, while the Veteran's records showed past symptoms associated with PTSD, he currently did not meet the diagnostic criteria. The examiner did diagnose a cognitive disorder and a depressive disorder, which he stated was currently in remission due to effective therapy and medication. The cognitive disorder in fact appeared to be responsible for the diminution of PTSD symptomatology, as that process overtook the Veteran. The sole apparent symptom of PTSD remaining was a fear of the dark. In an addendum to the original report, the examiner stated that the depression was currently asymptomatic. Nevertheless, regardless of the degree of severity at any given time, the Veteran was diagnosed with depression, anxiety, an adjustment disorder and PTSD at various points during the pendency of the claim. VA doctors have at all times indicated that some psychiatric diagnosis was warranted, even if such was asymptomatic. The requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of the claim; a Veteran may be granted service connection even though the disability resolves or remits prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A current disability is established. All doctors rendering an opinion have determined that the Veteran's acquired psychiatric disorder symptoms, other than a cognitive disorder, are causally related to the reported in-service assaults. There is no contrary opinion. As the doctors have continued to relate the symptoms of an earlier acquired psychiatric disorder diagnoses to service, a nexus is established between the currently diagnosed acquired psychiatric disorder, including PTSD and depression, and the verified in-service personal assaults. Service connection for an acquired psychiatric disorder, to include PTSD and depression, which symptoms were also variously diagnosed as anxiety and an adjustment disorder, is warranted. The question of whether any functional impairment from an acquired psychiatric disorder is present or subsumed by the overlaying dementia is irrelevant to the issue of service connection for the acquired psychiatric disorder. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and depression, but not to include a cognitive disorder, is granted. REMAND The January 2012 VA examiner distinguished a current cognitive disorder from the service-related conditions, stating that such was not due to or a result of his in service stressor or military service but rather may be due to age or dementia. She indicated that the cognitive disorder had subsumed any acquired psychiatric disorder almost entirely. She clearly stated that she believed age or dementia may have caused the cognitive deficit. However, the examiner's discussion also raised the possibility that some aggravating effect existed between the cognitive disorder and the now service-connected disorder. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet App. 439 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised in order to more thoroughly reflect the holding in Allen, that secondary service connection is available for chronic aggravation of a nonservice-connected disorder. Under the revised § 3.310(b) the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service- connected. Unfortunately, as the Veteran and his representative point out in their February 2013 Post-Remand Brief, the VA examiner did not address this aggravation question. Accordingly, remand is required to secure a medical opinion. As updated VA treatment records may inform that opinion, on remand such records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file complete VA treatment records from the medical center in New Orleans, Louisiana, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of May 2012 to the present. 2. Schedule the Veteran for a VA neuropsychiatric examination. The claims folder must be reviewed in conjunction with the examination and the examiner should indicate in the examination report that such was accomplished. a. The examiner should opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that the cognitive disorder is related to active service. Please provide a complete explanation for the opinion. b. Also, did the service-connected acquired psychiatric disorder, to include PTSD, depression, and anxiety, at least as likely as not (a probability of 50 percent or greater) cause the cognitive disorder. Please provide a complete explanation for the opinion. c. Finally, is it at least as likely as not (a probability of 50 percent or greater) that the cognitive disorder was aggravated (i.e., worsened) beyond the natural progress by the service-connected PTSD, depression, and anxiety. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's cognitive disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected psychiatric disorder. Please provide a complete explanation for the opinion. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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. 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). ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs