Citation Nr: 1311864 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-42 758 ) 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) and generalized anxiety disorder. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to October 1968, including service in the Republic of Vietnam and his decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran requested a hearing before a Decision Review Officer (DRO). The DRO hearing was scheduled and subsequently held in March 2011 at the Hartford, Connecticut RO. Thereafter, in February 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a disability claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In the present appeal, the Veteran filed a claim for service-connected disability benefits for PTSD. Evidence of record reveals that the Veteran has also been diagnosed with generalized anxiety disorder. Thus, in accordance with Clemons, VA must consider whether either of these disorders is etiologically related to his military service. The issue has therefore been recharacterized to reflect such consideration. The issue of entitlement to a TDIU 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. FINDING OF FACT The competent and probative evidence is, at the very least, in relative equipoise as to whether the Veteran has PTSD with generalized anxiety disorder which is due to service. CONCLUSION OF LAW PTSD with generalized anxiety disorder was incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Entitlement to service connection for PTSD in particular requires medical evidence diagnosing PTSD in accordance with the 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); 4.125(a). If the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships 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)(2). Where the claimed stressor is not related to combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's account as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f); Cohen v. Brown, 10 Vet. App. 128 (1997). Evidence denoting participation in combat includes award of decorations such as the Combat Action Ribbon, Combat Infantryman Badge (CIB), Purple Heart Medal, and decorations such as the Bronze Star Medal that have been awarded with a Combat "V" device. In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD and generalized anxiety disorder. Initially the Board notes that service treatment records reveal that the Veteran was treated for two gunshot wounds in service and that the Veteran was awarded the Purple Heart Medal. As such, the Veteran's claimed stressors have been established. In April 2011 the Veteran underwent a psychiatric consultation by a VA psychiatrist. The Veteran reported that he has tried to deal with things in his way for years and that he has come to the conclusion that it does not help any more. The Veteran reported that his problems started after service where he was in charge of a team that was "wiped out." He sees bodies of the soldiers and himself lying injured with those bodies. He had very detailed recollections of the events both as nightmares and flashbacks. He also indicated avoidance and hypervigilence symptoms. The Veteran reported that he tried to control the symptoms with drinking and that it had come to the point where this did not help. After a mental status examination the Veteran was noted to not have a past psychiatric history and to endorse reexperiencing, avoidance, and hypervigilence symptoms in context of his past military trauma and attempt to self medicate with daily alcohol. The Veteran was diagnosed with PTSD, generalized anxiety disorder, alcohol abuse, and depression not otherwise specified (NOS) versus substance-induced mood disorder (SIMD). In May 2011 the Veteran was afforded a VA medical examination. The Veteran reported that he was exposed to combat in the Republic of Vietnam and was wounded. The Veteran reported his stressors and indicated that his response to these stressors was extreme fear of death. He reiterated multiple times that he did not know how he survived. After mental status examination the Veteran was diagnosed with alcohol dependence, rule out alcohol abuse. The examiner stated that the Veteran did not meet the full DSM-IV criteria for PTSD. It was noted that although the Veteran candidly reported being involved in several combat situations, including two situations in which he was wounded in the line of action, he failed to meet other criteria required for a diagnosis of PTSD. His identified stressors, however, were judged to be related to the Veteran's fear of hostile military or terrorist activity. The Veteran reported significant reexperiencing of his traumas, usually in the form of intrusive memories, and possibly also intermittent increases in physiological arousal when exposed to trauma-related cues. The examiner noted that the Veteran failed to demonstrate clinically-significant levels of avoidance and hyperarousal both of which were reported to be necessary for a diagnosis of PTSD. The examiner noted that the Veteran's PTSD appeared to cause little or no disruption in his functioning. The Board finds that entitlement to service connection for PTSD with generalized anxiety disorder is warranted. The Veteran is presumed to have been exposed to combat in service based upon his receipt of the Purple Heart Medal. In addition, the Veteran's service treatment records reveal that he was treated for two gunshot wounds. In April 2011 the Veteran was diagnosed with PTSD and generalized anxiety disorder by a VA psychiatrist. In making this diagnosis the psychiatrist indicated that the Veteran had no past psychiatric history and endorsed reexperiencing, avoidance, and hypervigilance symptoms in context of his past military trauma and attempt to self medicate with daily alcohol. A VA medical examiner in May 2011 indicated that the Veteran's identified stressors were related to the Veteran's fear of hostile military or terrorist activities; however, the examiner rendered the opinion that the Veteran did not have a diagnosis of PTSD. The examiner's opinion was based upon a lack of clinically-significant levels of avoidance and hyperarousal. However, as the evidence is in relative equipoise regarding whether the Veteran has a diagnosis of PTSD with generalized anxiety disorder related to his exposure to combat stressors in service, entitlement to service connection for PTSD with generalized anxiety disorder is granted. ORDER Service connection for PTSD with generalized anxiety disorder is granted. REMAND The Veteran seeks entitlement to a TDIU. As the Board above grants entitlement to service connection for PTSD with generalized anxiety disorder, the Board finds it necessary to remand the Veteran's claim for TDIU for the Veteran to be afforded a VA medical examination regarding whether his service connected disabilities, including PTSD with generalized anxiety disorder, prevent him from obtaining or maintaining substantially gainful employment. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that the Veteran indicated at his hearing before the undersigned in February 2012 that he has been awarded Social Security Administration (SSA) disability benefits. Review of the claims file does not reveal that the records regarding the Veteran's application for SSA disability benefits have been obtained and associated with the claims file. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Therefore, on remand attempts must be made to obtain the Veteran's complete SSA record. Since the claims file is being returned it should be updated to include VA treatment records compiled since May 2011. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain VA medical records pertaining to the Veteran that are dated since May 2011. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 3. Thereafter, schedule the Veteran for an appropriate VA examination regarding the Veteran's claim of entitlement to a TDIU. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs