Citation Nr: 1314736 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 06-26 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to an increased evaluation in excess of 20 percent for duodenal ulcer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from October 1973 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. This matter was previously remanded by the Board in August 2010 and August 2012. The actions required as part of the remands concerning the psychiatric disorder claim have been performed and the matter is now ready for appellate review. The issue of entitlement to an evaluation in excess of 20 percent for a duodenal ulcer is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his current PTSD is of service origin. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As it relates to the claim of service connection for PTSD, the VCAA is not applicable where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, further assistance is not required to substantiate that element of the claim. Service Connection Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id. See also 38 C.F.R. § 4.125(a) (2012). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, 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. The Veteran maintains that he currently has PTSD as a result of seeing a fellow soldier commit suicide on the firing range. He has also made reference to the way he was treated during basic training on Parris Island as a stressor. The Veteran has consistently reported that while in boot camp around November or December 1973, during testing at the rifle range, one of the recruits in his platoon jumped up and ran in front of the line of fire and was hit. He has reported that they were told to unload their rifles and leave them at the firing range. He reported that he subsequently went to kitchen duty after that. In an undated letter, received in December 2003, a VA psychiatrist indicated that the Veteran carried the diagnoses of PTSD, schizoaffective disorder, and polysubstance dependence. The psychiatrist noted that the Veteran's PTSD symptoms were related to his experiences while at Paris Island. He indicated that the Veteran reported that in December 1973, during one of the shooting practices, one of his peers ran across the firing line and was killed. In conjunction with the August 2010 Board remand, the Veteran was afforded a VA examination in October 2010. The examiner rendered Axis I diagnoses of schizoaffective disorder, alcohol dependence, cocaine abuse, and PTSD. The examiner indicated that he could not provide an opinion as to whether any of the diagnosed disorders were related to service without resort to speculation. In December 2011, it was found that the Official Command Chronology (July 1973-December 1973) for the Marine Corps Recruit Depot, Parris Island, South Carolina, documented that no recruit personnel deaths occurred between July 1, 1973 and December 31, 1973. The AMC determined that no further development action was to be taken to corroborate the Veteran's alleged stressor. When reviewing the command chronology, the Board notes that 0 deaths were reported for the recruit personnel; however, there were 2 deaths of permanent personnel and one civilian death reported. There were also reports of 6 very seriously ill/injured, non-hostile, reported during this timeframe. As a result of the opinion, the Board once again remanded this matter for further development, to include obtaining an additional VA examination to address the Veteran's psychiatric disorders and their relationship, if any, to his period of service. The Veteran was afforded the requested examination in January 2013. At the time of the examination, the Veteran again reported the incident where a fellow Marine crossed into the line of fire on the rifle test range. The Veteran stated that he was in a supervisory role and "dropped the ball by not being more on top of what the kid was going through". The examiner rendered Axis I diagnoses of PTSD and polysubstance abuse in early remission secondary to PTSD. The examiner stated that it was his opinion, based upon data gleaned from the Veteran's electronic medical file, the 3 volume claims folder, and data provided by the Veteran at the interview that the Veteran met the criteria for PTSD. He stated that the Veteran began experiencing clinical symptoms meeting the diagnostic criteria for PTSD and subsequently developed polysubstance abuse in an attempt to modulate significant effects on his functioning secondary to experiencing anxiety symptoms in relation to having witnessed the suicide of a fellow Marine who was part of his squad for which he was the squad leader. The examiner noted that the Veteran was experiencing symptoms consistent with the 3 major symptom sub-types. The examiner stated that the Veteran's symptoms did not meet the diagnostic criteria for a mood disorder, schizophrenia, schizoaffective disorder, anxiety disorder, personality disorder, or adjustment disorder. He noted that the Veteran's symptoms of schizophrenia were more likely consistent with alcohol induced psychotic disorder, with hallucinations. The examiner also stated that the Veteran's psychiatric disorder did not pre-date service. The Veteran meets the first criteria for granting PTSD as he currently has a diagnosis of PTSD. As to the required stressor component, the Board notes that the Veteran has consistently reported witnessing a fellow solder being shot while on the firing range. His statements have not varied throughout the course of the appeal. While there was a formal finding in December 2011 that the Veteran's claimed stressor could not be verified, with the basis for this being that the Command Chronology Report indicated that there were no deaths of recruit personnel for Parris Island between July 1973 and December 1973, the Board notes that there were 2 deaths of permanent personnel and 6 reports of seriously ill/injured during this time frame, along with one civilian death. The Board finds that the Veteran's claimed stressor, which has not varied in detail throughout the appeal, when accompanied with the reported deaths/severe injuries during the time frame in question, creates at least reasonable doubt that the claimed incident occurred. The Board, resolving reasonable doubt in favor of the Veteran, finds the Veteran's statements credible as they relate to the required claimed stressor. Finally, the January 2013 VA examiner not only diagnosed the Veteran as having PTSD but related it to the rifle range incident. Given the foregoing, the criteria for service connection for PTSD have been met. ORDER Service connection for PTSD is granted. REMAND As it relates to the claim for an increased disability evaluation for a duodenal ulcer, the Board notes that in treatment records recently associated with Virtual VA, the Veteran reported a worsening of the symptomatology associated with his gastrointestinal disorder. In a November 2012 outpatient treatment record, the Veteran indicated that his gastrointestinal symptoms had worsened with increased stress. It was indicated that medication for the condition was increased. VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). . Based upon the above, an additional VA examination to determine the extent of the current duodenal ulcer, and/or residuals thereof, is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his service-connected duodenal ulcer. All necessary tests and studies should be performed and all findings must be reported in detail. The claims folder and any other pertinent records must be made available to the examiner. The examiner should comment on the absence or presence of the following: standard ulcer therapy, vomiting, hematemesis, melena, manifestations of anemia, and weight loss. The examiner should also comment on the impairment of the Veteran's health caused by his service-connected gastric ulcer, to include the number of incapacitating episodes, if any, per year, and the duration of the episodes. The examiner should also discuss what impact, if any, the duodenal ulcer has on the Veteran's occupational ability. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the remaining claim on appeal. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for future review. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs