Citation Nr: 1318477 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 12-30 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) with anxiety symptoms. 2. Entitlement to service connection for a psychological disorder other than PTSD, to include bipolar disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to July 1969, to include service in the Republic of Vietnam from December 1967 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board acknowledges that the RO treated the submission of a March 2012 statement (and subsequently obtained VA treatment records) following the initial December 2011 rating decision as a new claim and erroneously advised the Veteran in a May 2012 letter that the time period for appealing the December 2011 rating decision had expired. After reviewing the record, the Board determines that the newly obtained VA treatment records associated with the claims file in July 2012, just prior to the issuance of second rating decision, constituted new and material evidence under 38 C.F.R. § 3.156(b), thereby rendering the December 2011 rating decision non-final. Moreover, the Veteran's August 2012 notice of disagreement is timely with respect to both the December 2011 and July 2012 rating decisions. Therefore, the Board determines that the current appeal stems from the Veteran's initial claim for benefits. Although the Veteran has claimed service connection for PTSD, the scope of a claim may include other diagnoses that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Notably, in this case, the record also reflects a distinct diagnosis of bipolar depressive disorder. See November 2011, March 2012, and May 2012 VA treatment records located on Virtual VA. The Board also notes that anxiety disorder, not otherwise specified, was noted on a June 2012 VA treatment report, but the Board finds that anxiety symptoms cannot be separated from his diagnosis of PTSD and, therefore, will be encompassed within that disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (indicating that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record). Thus, the issues have been modified as reflected on the first page of this decision. The issue of entitlement to service connection for a psychological disorder other than PTSD, to include bipolar disorder will be 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 Resolving doubt in the Veteran's favor, the Veteran has PTSD with anxiety symptoms related to fear of hostile military or terrorist activity during his service in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD with anxiety symptoms have been met. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2011). 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The VCAA notice requirements apply to all five elements of a claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the Veteran's claims for PTSD, the Board grants in full the benefits sought on appeal. Thus, any deficiency in VA's VCAA compliance is deemed to be harmless error, and any further discussion of VA's responsibilities under the VCAA is not necessary. II. Service Connection for PTSD with Anxiety Symptoms As an initial matter, the Board notes that the provisions relating to the establishment of service connection for PTSD, found at 38 C.F.R. § 3.304(f), were amended, effective July 13, 2010. See 75 Fed. Reg. 39,843-01 (Jul. 13, 2010) and 75 Fed. Reg. 41,092-01 (Jul. 15, 2010) (effectuating a correction to the July 13, 2010 Federal Register). As set forth in the Federal Register, the revised provisions of 38 C.F.R. § 3.304(f) were made effective July 13, 2010, and are therefore applicable in this case. In pertinent part, the amended regulations provide that lay testimony alone may establish the occurrence of the claimed in-service stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of service, when a veteran experienced fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3) (2012). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (stating that if a diagnoses of a mental disorder does not conform to DSM-IV or is not supported by findings in the examination report, the rating agency shall return the report to substantiate the diagnosis); 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) (2012). With regard to stressors related to fear of hostile military or terrorist activity, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must also confirm "that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor." 38 C.F.R. § 3.304(f)(3). Additionally, "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 . . . and the veteran's response to the event or circumstance involved a psychological or psychophysiological state of fear, helplessness, or horror." Id. Examples such activity includes, but is not limited to, 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 an attack upon friendly military aircraft. Id. In this case, the Veteran asserts that he has PTSD due to many stressful circumstances in service, to include his time in Vietnam, especially during the TET Offensive. He described, in particular, at least two stressors related to fear of hostile military or terrorist activity. The June 2012 VA examiner, a clinical psychologist, stated that stressors of (1) exposure to mortar rounds, artillery, and gunfire while stationed in Vietnam and (2) participating in the TET Offensive and witnessing deaths of others met the criterion to be adequate support a diagnosis of PTSD and are related to the Veteran's fear of hostile or military or terrorist activity. Much of the circumstances he described in Vietnam are the types of hostile military or terrorist activities that may not be readily verifiable and were meant to be encompassed in the revised PTSD regulation, i.e. incoming artillery, rocket, or mortar fire, grenade, and small arms fire. Thus, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressors because they are consistent with the circumstances, conditions, or hardships of his war-time service in Vietnam, and there is no clear and convincing evidence to the contrary. The remaining question, therefore, is whether the Veteran has been diagnosed with PTSD as a result of these stressors. The Board acknowledges that the August 2010 VA examination report indicated that, although the Veteran did describe traumatic events associated with his experiences in the military, "he did not currently report symptoms that would be suggestive of a diagnosis of PTSD." Subsequently, a June 2012 VA examiner stated that "there was no evidence of a psychiatric disorder that contributes to significant impairments." However, the evidence also includes several VA Mental Health treatment notes reflecting diagnoses of PTSD. Of particular importance, a November 2011 initial VA mental health assessment by S.A., M.D., determined that the Veteran met the criteria for an Axis I diagnosis of PTSD. An addendum to this report was filed by a staff psychiatrist, J.V.F., who indicated that he also interviewed the Veteran and confirmed the pertinent findings. A diagnosis of PTSD was also provided in follow-up treatment reports in March 2012 and May 2012. The Board notes that, in the absence of evidence to the contrary, medical professionals are presumed to be competent to render the diagnoses they render. Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed.Cir.2009); Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Significantly, there is also a presumption that a PTSD diagnosis by a mental health professional was rendered in accordance with DSM standards. See Cohen, 10 Vet. App. at 140 (holding that a "PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor"). Here, there is no indication that the VA Mental Health clinicians were unaware of pertinent facts or otherwise based their decision on an inaccurate factual premise; in fact, there are many similarities between the history provided by the Veteran to the VA Mental Health clinic for purposes of treatment and that provided to the VA examiners. In this case, the Board finds no compelling reason to discount the rationale and findings of the medical evidence of record suggesting that the Veteran suffers from PTSD based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board resolves doubt in the Veteran's favor and finds that a medical diagnosis of PTSD conforming with § 4.125(a) has been met, and that such diagnosis is related to fear of hostile military or terrorist activity during his service in Vietnam (the Board parenthetically notes that the sufficiency of the stressors as a basis for PTSD as well as the relationship to fear of military or terrorist activity was expressly conceded by the June 2012 VA examiner, a clinical psychologist, even though that examiner eventually concluded that it could not be found that there was a psychiatric disorder contributing to significant impairment). Thus, all of the criteria for establishing service connection under the revised regulation have been met. Moreover, to the extent that the most recent VA treatment record of June 2012 reflects a diagnosis of anxiety disorder, not otherwise specified, the Veteran has described anxiety symptoms when he was evaluated for PTSD. For example, in the June 2012, it was noted that he experienced exaggerated responses to loud noises. Also, in the November 2011 VA treatment report, the clinician noted that the Veteran reported anxiety symptoms of "excessive anxiety and worry, being easily fatigue, difficulty concentrating, irritability, asleep disturbance, and racing thoughts." However, no separate anxiety disorder was diagnosed at that time. To the contrary, the only two diagnoses rendered at that time were of PTSD and bipolar disorder. Therefore, the Board resolves doubt in the Veteran's favor and concludes that these symptoms were encompassed in the provided PTSD diagnosis. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (indicating that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record). Further inquiry could be undertaken with a view towards development of the claim so as to obtain yet another medical opinion to clarify the discrepancies in diagnosis. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Given the competent medical evidence of record suggesting that the Veteran has a diagnosis of PTSD related to fear of military or terrorist activities based upon reports from both a VA psychiatrist and psychologist, and notwithstanding the differing opinions of record as to whether all the criteria have been met for a diagnosis, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection. As such, service-connection for PTSD with anxiety symptoms is granted. ORDER Service connection for PTSD with anxiety symptoms is granted. REMAND As stated above in the Introduction, the Board determines that the Veteran's claim for PTSD also encompasses a claim for bipolar disorder. However, additional development is necessary. As an initial matter, an SSA inquiry sheet reflects that the Veteran is in receipt of SSA payments. Although this sheet does not identify the basis of those benefits, the Board finds it significant that the Veteran reported on his initial claim for benefits in July 2010 that he had either claimed or was receiving "disability benefits" from SSA. Because the Veteran indicated that he either applied for or received SSA disability benefits, and he also stated in VA Mental Health treatment records that he was involved in verbal altercations at work, the Board finds that these records may be potentially relevant to his claim for service connection for a psychological disorder. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C.A. § 5103A when "there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits"); Talley v. Brown, 6 Vet. App. 72, 74 (1993) (holding that duty to assist was breached because RO failed to secure records that were potentially relevant); Schafrath v. Derwinski, 1 Vet. App. 589, 593-94 (1991) (noting duty to assist requires effort to secure records that are potentially relevant or explanation for failure to do so). Accordingly, on remand, a request for records from SSA must be accomplished. Additionally, as the previous examinations focused on PTSD, there is insufficient medical evidence to decide the claim at this juncture, so the Veteran should be provided an examination to address the nature and etiology of the Veteran's diagnosed bipolar disorder or any other diagnosed psychological disorder other than PTSD. The examiner is directed to concede the Veteran's experiences in Vietnam as part of the TET Offensive and offer an opinion as to whether the Veteran has any psychological disorder other than PTSD, to include bipolar disorder, that is related to service. Finally, to the extent that the Veteran may have received any additional treatment for a psychological disorder from the Richmond VA Medical Center, recent treatment records from that facility should also be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file left-eye-related treatment records from the Richmond VA Medical Center dated from June 2012 to the present. If such records are unavailable, the claims file should be clearly documented to that effect. 2. Obtain and associate with the claims SSA records related to disability benefits. If such records are unavailable, the claims file should be clearly documented to that effect. 3. After the development requested in items (1) and (2) is completed, schedule the Veteran for an examination to determine the nature and etiology of any psychological disorder other than PTSD. For any diagnosed disability other than PTSD, to include bipolar disorder, the examiner is directed to offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disorder was caused by, or incurred during, military service, including the Veteran's experiences in Vietnam. A complete rationale must be provided for all opinions rendered. If the reviewing clinician cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue of entitlement to service connection for a psychological disorder other than PTSD, to include bipolar disorder. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs