Citation Nr: 1315046 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 04-38 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for a psychiatric disability other than PTSD REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from October 1964 to August 1968. Subsequently, he had service with the National Guard with numerous periods of active duty for training (ACDUTRA). Significantly, available records list the Veteran as being on ACDUTRA status for 14 days during the period of May 1, 1971 through June 30, 1971. This appeal to the Board of Veterans' Appeals (Board) arises from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2007, the Veteran testified during a Board Videoconference hearing before a Veterans Law Judge (VLJ). A transcript of this proceeding has been associated with the claims file. In July 2007 the Board reopened the claim based on the submission of new and material evidence and remanded the claim to the RO for additional development. The Board remanded the claim again in August 2010. In March 2012 the Board noted that the Veteran most recently testified at an April 2007 Board hearing before a VLJ. In January 2012 correspondence, the Board informed the Veteran that the VLJ who had conducted the prior hearing had since retired from the Board, and that he had the option of requesting another hearing before the VLJ who would ultimately decide his appeal. See 38 C.F.R. § 20.707 (2012). By correspondence also dated in January 2012 the Veteran elected to have another hearing, specifically a Board Videoconference hearing. Thus, the Board remanded the claim again in March 2012 to afford the Veteran a new hearing as well as for additional development by the RO. In January 2013, the Veteran testified during a Board Videoconference hearing before the undersigned VLJ. The Board is satisfied that there has been substantial compliance with the remand directives in the July 2007, August 2010, and March 2012 remands and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated through May 2012 as well as a transcript of the January 2013 Board Videoconference hearing. Significantly, the VA treatment records dated through May 2012 were reviewed by the RO in a supplemental statement of the case dated in May2012. The remainder of the documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for a psychiatric disability other than PTSD is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The Veteran is diagnosed with PTSD, which is related to at least one verifiable traumatic event experienced during his ACDUTRA. CONCLUSION OF LAW Service connection for PTSD is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 4.125 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal arises out of the Veteran's assertion that his PTSD is related to his ACDUTRA service with the United States Navy in approximately June 1971. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); see Mercado-Martinez v. West, 11 Vet. App. 415 (1998). An individual who has served only on active duty for training must establish a service-connected disability in order to achieve veteran status. Paulson v. Brown, 7 Vet. App. 466 (1995); Biggins v. Derwinski, 1 Vet. App. 474 (1991). Service connection for PTSD, in particular, 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125 (2002) (requiring PTSD diagnoses to conform to the criteria in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV)). 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 adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided 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. For purposes of this paragraph, "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. 38 C.F.R. § 3.304(f)(3)). Factual Background The Veteran's service records reflect active service from October 1964 to August 1968. Service personnel records reflect no receipt of combat-related award or citation and no designation of participation in a combat campaign. Service treatment records are negative for psychiatric problems during this active service. Notably, the Veteran's October 1964 enlistment examination and August 1968 separation examination show a normal psychiatric system. Subsequently, he had service with the National Guard presumably with numerous periods of active duty for training (ACDUTRA). Significantly, available records list the Veteran as being on ACDUTRA status for 14 days during the period of May 1, 1971 through June 30, 1971. The Veteran contends he took part in a search and rescue mission involving a plane crash on June 20, 1971. The record confirms that he was assigned to a reserve unit listed as participating in recovery work for the June 20, 1971 plane crash. Post-service VA treatment records show that the Veteran was seen for a PTSD consultation in March 2000. The impression was bipolar disorder vs. mood disorder. In April 2000 the Veteran was diagnosed with PTSD. The Veteran filed a claim for service connection for PTSD in May 2000. In response to an August 2000 statement for stressor information the Veteran wrote that while aboard the USS Constellation in the summer of 1966 there was an accident while refueling alongside a tanker. Notably, service personnel records do show that the Veteran was aboard the USS Constellation beginning March 1966. A July 2000 VA treatment record also notes the stressor regarding refueling a battleship. A December 2000 VA treatment record notes combat related stressors and a January 2001 VA treatment record notes a stressor of seeing dead pilots. In an April 2002 statement the Veteran reported a second stressor, specifically participating in an attempted rescue of a female diver in the summer of 1987. In a May 2002 statement the Veteran reported a third stressor, specifically rescuing a sailor that fell overboard the USS Constellation in the summer of 1966. In another May 2002 statement the Veteran reported a total of four claimed stressors (three stressors that had previously been reported and one new stressor): 1) emergency break-away refueling in the summer of 1966, 2) a drowning incident in the summer of 1987 during ACDUTRA status, 3) responding to a Naval Air Reserve flight crash in Rome, Georgia in 1970, and 4) rescuing a sailor who fell off the pier into the Subic Bay, Philippines in 1966. In a March 2003 statement the Veteran reiterated the stressor regarding searching wreckage of a plane crash to recover a pilot but, this time, indicated that this occurred between April and May 1971. He also reported a new stressor, specifically, in March 1965 while aboard the USS Midway 54 powder casings had come loose and were rolling on the deck. In May 2003 the Veteran submitted a report of an accident on June 20, 1971 in an attempt to confirm the Veteran's claimed stressor of searching wreckage of a plane crash to recover a pilot as part of his ACDUTRA service in 1971. A subsequent December 2009 DPRIS request noted that the pilot in the June 20, 1971 was killed. In April 2006 statements the Veteran's treating VA physician, wrote that it was possible that the Veteran's anxiety streamed from the downed pilot incident. He also wrote that finding tiny remains of a downed pilot and jumping into the water off a pier to save a drunken service man had an undetermined relationship to the Veteran's anxiety. The Veteran was afforded a VA psychiatric examination in January 2010. This examination report shows Axis I diagnoses of bipolar I disorder, mixed, in partial remission; PTSD; and alcohol dependence in remission. The examiner opined that the Veteran's PTSD was at least as likely as not (50/50 probability) caused by or a result of the Veteran's mid-air collision recovery. The examiner also noted that it was evident that the Veteran's exposure to war and other hazardous experiences put him at increased risk but did not cause the condition. In the rationale portion of the examination report, the examiner noted the following: 1) It appears that the Veteran made sufficient adjustment to adulthood by virtue of the fact that the Veteran was found qualified to enter the military, 2) The Veteran denied that there was a prior history of mental health care ("self and family") prior to entering the military, 3) the records indicate that the Veteran did not seek health care while on active duty, 4) the Veteran did not report that mental health symptoms were being experienced at the time of separation, 5) apparently, the Veteran did not approach mental health care until coming to the VA medical center. He received some assessment for PTSD and the results were generally suggestive of PTSD, 6) within the context of the defense and avoidant symptom cluster of PTSD, sufferers tend to experience a variety of phenomena and methods to minimize, dampen, and attempt to eliminate distressing intrusive experiences and autonomic hyper arousal symptoms. Commonly enough, these symptoms are subtle and difficult to detect and tend to induce the individual to avoid anything (e.g., mental health treatment, open discussions about their experiences, etc.) that increase the risk that they will experience emotional distress. Often, the dominance of such symptoms eclipse other symptom clusters to the extent that detecting them can become problematic. Commonly enough, sufferers will resort to the use of alcohol, recreational drugs, and/or immerse themselves in their work in an attempt to deal with their difficulties. It was the examiner's impression that this situation was sufficiently evident in this case. Pursuant to the July 2007 Board remand, the RO attempted to verify whether the Veteran was actually on ACDUTRA on June 20, 1971, the date of the plane crash. In response to this request, a March 2010 Report of Information indicated that there was no way to verify the Veteran's actual dates of ACDUTRA in 1971. In August 2010 the Board again requested that the RO attempt to verify whether the Veteran was actually on ACDUTRA on June 20, 1971, the date of the plane crash. In a November 2011 supplemental statement of the case the RO indicated that the Veteran's duty status on June 20, 1971 continued to remain unverified. It was noted that the records received from National Personnel Records were merely duplicative of evidence that had been previously reviewed and considered. Analysis Initially, the Board notes that there is a current diagnosis of PTSD as shown by several VA outpatient treatment records dated from April 2000 to May 2012 and a January 2010 VA examination. Additionally, the January 2010 examiner related the Veteran's PTSD diagnosis to the Veteran's participation in the recovery of the mid-air collision recovery in June 1971. The Board also notes that there is no evidence to suggest that the Veteran engaged in combat with the enemy. Service records do not reflect participation in combat situations or receipt of combat-related award. There is no evidence or allegation of wound or injury potentially related to combat. Accordingly, pursuant to VA regulation, the record must contain credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). All service connection claims must be considered on the basis of the places, types and circumstances of a claimant's military service. 38 C.F.R. § 3.303(a). The incident the Veteran described regarding his participation in the recovery of the mid-air collision recovery in June 1971is entirely consistent with the place and circumstances of his service, as shown by his service personnel records. Moreover, the particular event the Veteran described has been confirmed; however, corroboration of every detail of a stressor under such circumstances, such as the claimant's own personal involvement, is not necessary. See Suozzi v. Brown, 10 Vet. App. 307 (1997); see also Pentecost v. Principi, 16 Vet. App. 124 (2002). In Pentecost, the Court held the Board had erred by requiring corroboration of the appellant's actual physical proximity to (or firsthand experience with) and personal participation in the claimed rocket attacks. The facts in this case are similar to Pentecost, as the Board now has evidence showing the Veteran very likely participated in the described events. As above, VA recently published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the occurrence of a stressor based on a particular type of stressor. The Board recognizes that the evidence in this case is not definitive. However, the search and rescue mission involving a plane crash on June 20, 1971 incident is consistent with the place and circumstances of his service, as shown by his service personnel records and there is no clear and convincing evidence to the contrary. As above, available records list the Veteran as being on ACDUTRA status for 14 days during the period of May 1, 1971 through June 30, 1971 and the record also confirms that he was assigned to a reserve unit listed as participating in recovery work for the June 20, 1971 plane crash. Although the Veteran's participation with this experience has not been corroborated by official documents, consideration of his service at the time of the claimed incident, in light of the verified incident, is sufficient to place the evidence in equipoise regarding this claim. With regard to the third element, a VA psychologist diagnosed PTSD in a January 2010 VA examination and attributed the PTSD to the Veteran's participation in the recovery of the mid-air collision recovery in June 1971. With resolution of reasonable doubt in the Veteran's favor; his stressor regarding participation in the recovery of the mid-air collision recovery in June 1971 is consistent with the circumstances of his service and his report of the stressor is sufficient without credible supporting evidence. The Veteran is entitled to have the benefit of the doubt resolved in his favor, and the Board concludes that the claimed in-service stressor has been verified with independent evidence. Therefore, as the medical evidence demonstrates a diagnosis of PTSD related to at least one traumatic experience in service that has been sufficiently and independently verified, entitlement to service connection for PTSD is granted. Notice and Assistance 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. 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. ORDER Service connection for PTSD is granted. REMAND The evidence of record shows that the Veteran has current diagnoses of multiple psychiatric disabilities. Although service connection has been granted for PTSD, the other diagnosed disabilities have not been addressed. If the Veteran is satisfied with the above grant of service connection for PTSD, and does not wish to pursue a claim for service connection for psychiatric disabilities other than PTSD, he may elect to withdraw his appeal. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran's VA records are up to date from November 2011 forward. 2. Schedule the Veteran for a VA examination to determine the current nature and etiology of his claimed acquired psychiatric disability other than PTSD. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical history of his psychiatric disabilities (other than PTSD). The examiner is asked to identify any acquired psychiatric disabilities currently experienced by the Veteran, if possible. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his disorders, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any identified acquired psychiatric disability, is related to active service or any incident of service. Additionally, should also opine whether it is at-least-as-likely-as-not that the disorder was caused or aggravated (permanently increased in severity) by the Veteran's service-connected disabilities. A complete rationale must be provided for any opinions expressed. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2011). ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs