Citation Nr: 1318712 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-08 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depression. ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to September 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2006 rating decision in which the RO denied service connection for PTSD. In March 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2008. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2008. In a November 2011 Remand, the Board, citing Clemons v. Shinseki, 23 Vet. App. 1 (2009) (which held that service connection for PTSD includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record, expanded the appeal to include matter of service connection for an acquired psychiatric disorder, other than PTSD. For purposes of clarification, the Federal Circuit has recognized that separately diagnosed psychiatric conditions can be service connected, but cannot not be separately rated unless they resulted in different manifestations. See Amberman v. Shinseki, (570 F.3d 1377, 1381 (Fed. Cir. 2009). It appears that the Veteran does not have a Virtual VA paperless claims file. The Board's decision addressing the claim for service connection for PTSD is set forth below. The claim for service connection for an acquired psychiatric disorder other than PTSD, is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Resolving all reasonable doubt in the Veteran's favor, the record reflects that a valid diagnosis of PTSD was made in 2005, which is related to an in-service stressor, the occurrence of which is supported by credible evidence. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for service connection for PTSD, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Service Connection for PTSD A. Background The Veteran filed a service connection claim for PTSD in July 2006. Service personnel records reflect that the Veteran served in Vietnam from September 1968 to September 1969 with the 359th Transportation Company. His Form DD 214 (separation document) indicates that the Veteran's military occupational specialty was a vehicle repairman, and that he did not receive any medals indicative of combat service. His service treatment records are negative for any complaints, treatment or a diagnosis of a psychiatric nature. The September 1969 separation examination report reflects that psychiatric examination was normal, and that the Veteran denied having nervous trouble, depression, nightmares, or trouble sleeping. Post-service evidence includes an April 2005 medical statement from E.W.H., a doctor associated with a private psychiatric clinic. The doctor indicated that based on an examination in April 2005, diagnoses of chronic PTSD and chronic major depression were supported. The doctor indicated that the Veteran reported receiving incoming (enemy fire) while attached to a transportation company in Vietnam, and that he began having nightmares in 1969. The doctor specified that the Veteran's current symptoms included depression; intrusive thoughts; memory impairment; and hallucinations. In an August 2006 letter, the RO requested that the Veteran provide specific information regarding his alleged stressor(s), including approximate dates, units involved, and the geographic location where the stressful event(s) took place. The Veteran did not provide the RO with any information relating to his alleged stressors in response to the August 2006 letter. The RO sent a follow up letter in October 2006. The Veteran did not respond to the October 2006 letter. A November 2006 Memorandum in the claims file (documenting a formal finding of information required to verify stressors in connection with a PTSD claim) reflects that the Veteran had not provided sufficient information about his alleged stressor(s) to forward the information to the U.S. Army Joint Service Records Research Center (JSRRC) for verification. In his March 2007 NOD, the Veteran stated that while in Vietnam, his base was attacked numerous times. In a July 2009 decision, the Board denied service connection for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2011 Memorandum Decision, the Court vacated the Board's denial of the claim for service connection for PTSD, and remanded the matter to the Board for further proceedings consistent with the Memorandum Decision. In August 2011, the Veteran submitted additional evidence without a waiver of initial RO consideration of the evidence. This evidence consisted of a resent stressor statement which he maintains was initially provided for the record in July 2006. He stated that he served in Vietnam from September 1968 to September 1969 with the 359th Transportation Company, with a military occupational specialty (MOS) as a truck driver. He added that his headquarters was in Qui Nhon and that he was based at Pleiku. The statement indicated that while stationed at Pleiku, the base came under attack numerous times. Also added to the file was an excerpt from a 2006 Board decision, indicating that the Board accepted as a valid and verifiable stressor in that case, an appellant's reports of rocket, mortar and other fire on Pleiku, between May and July 1969. In the November 2011 Remand, the Board noted that in November 2006, the RO had issued a memorandum detailing the lack of information necessary to verify the Veteran's reported stressor and observed that in this regard, there was no indication that the RO attempted to verify at what base(s) the Veteran's unit was stationed in Vietnam and whether the Veteran's base(s) was/were exposed to rocket, mortar, and small arms fire, as alleged. It was also mentioned that in the April 2011 Memorandum Decision, the Court had noted the Veteran's unit assignment in Vietnam for the period from September 10, 1968 to September 4, 1969 is of record, and, thus, his stressor related to base attacks in Vietnam appears to be independently verifiable. Pursuant to the November 2011 Board Remand, the RO was requested to undertake any necessary development to attempt to verify the Veteran's alleged stressor related to his base in Pleiku, Vietnam coming under attack, to specifically include through the U.S. Army Joint Services and Records Research Center (JSRRC) and any other source(s), as appropriate. Also requested was any additional action necessary for independent verification of any reported verifiable stressors, to include follow-up action requested by the contacted entity, should be accomplished. The Remand also provided that in the event that the RO determined that the record establishes the existence of a reported stressor, the RO should arrange for the Veteran to undergo VA examination, by a psychiatrist or psychologist, at an appropriate VA medical facility. In July 2012, the JSRRC indicated that it could not verify if the Pleiku Air Base experienced rocket, mortar, and small arms fire on several occasions between November 1968 and September 1969. The claim continued to be denied, as reflected in a July 2012 Supplemental SOC. In September 2012, the case reached the Board again and was remanded. At that time, the Board pointed out that on July 13, 2010-during the pendency of this appeal-VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). It was explained that pursuant to 38 C.F.R. § 3.304(f), as revised, 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 PTSD, 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. 38 C.F.R. § 3.304(f)(3). The Board observed that consistent with the Veteran's assertion, his service personnel records reflect that he did serve in Vietnam from September 1968 to September 1969 while attached to the 359th Transportation Company. During that time, his designated MOS's were equipment repairman, wheeled vehicle mechanic, and senior vehicle repairman. It was further noted that, although the records did not specifically indicate that the Veteran served at Pleiku (or at any other specific base or location in Vietnam), as alleged, the Veteran's assertions of assignment to Pleiku are not contradicted by any other evidence. The Board also noted that the occurrence of repeat attacks on Pleiku during the Veteran's tour of duty had not specifically been verified in connection with this appeal, but found that the verified information reflected in the 2006 Board decision excerpt does suggest that enemy attacks on Pleiku, Vietnam occurred during the Veteran's service. In the 2012 remand, affording the Veteran the benefit of the doubt, the Board made a specific finding to the effect that the Veteran's claimed stressors regarding enemy attack s-which seem to be impliedly related to the Veteran's fear of hostile military activity-appear to be consistent with the places, types, and circumstances of the Veteran's service. Consequently, resolving all reasonable doubt in the Veteran's favor (see 38 C.F.R. § 3.102), and consistent with recent regulatory amendments, the Board concluded that the Veteran's lay assertions may be accepted as sufficient evidence that these alleged stressors occurred-provided that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressors are adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressors. Having made the aforementioned finding, the Board remanded the case for further medical examination and opinion, to resolve the matter of service connection for PTSD and to identify whether any other acquired psychiatric disorder was supported by diagnosis, and whether such disorder was etiologically related to the Veteran's his active duty service, to include any fear associated with hostile military activity therein. Pursuant to the Board's remand, a VA psychiatric examination was conducted in December 2012. At that time, the examiner found that the diagnostic criteria for PTSD or major depressive disorder had not been met, and indicated that the Veteran appeared to be exaggerating his symptom presentation and attempting to appear more impaired than he actually was. The examiner indicated that the Veteran was unable to identify a specific stressor from Vietnam and instead described his entire tour there as traumatic. The examiner also opined that the Veteran had not sufficiently described any specific stressor which was productive of intense fear, helplessness, or horror. B. Analysis Service connection for PTSD 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether the veteran engaged in combat with the enemy, as well as whether the claimed in-service stressor is related to such combat; or, if not, whether there is objective evidence to verify the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also 38 U.S.C.A. 1154(b) (West 2002). For veterans who have served in combat, lay testimony alone may be accepted to establish the occurrence of a claimed in-service stressor as long as "the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service" and there is no "clear and convincing evidence to the contrary." 38 C.F.R. § 3.304(f)(2). As referenced above, in July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010) and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. 38 C.F.R. § 3.304(f)(3) now provides that, 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 1) adequate to support a diagnosis of PTSD, and 2) that the veteran'' symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that 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. 38 C.F.R. § 3.304(f)(3). Moreover, the amendment provides that, "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. Id. In this case, the report of a private, April 2005 evaluation reflects that a DSM-IV diagnosis of PTSD has been made. The Board further finds that, in the report, the examiner essentially linked the diagnosis to the Veteran's Vietnam service during which time the Veteran served with a transportation unit and reported receiving incoming enemy fire. Here, while the Veteran did not engage in combat with the enemy, was not a POW, and has not asserted any stressors related to terrorist activity, his aforementioned experience of receiving incoming enemy fire while serving in Vietnam with the from September 1968 to September 1969 while attached to the 359th Transportation Company arguably falls within the new provisions of 38 C.F.R. § 3.304(f)(3) regarding hostile military activity. In this regard, the Veteran provided specific stressor information to the effect he served in Vietnam from September 1968 to September 1969 with the 359th Transportation Company, with an MOS as a truck driver; that his headquarters was in Qui Nhon; and that he was based at Pleiku. A 2006/2011 stressor statement indicated that while stationed at Pleiku, the base came under attack numerous times. In 2012, stressor verification was sought through JSRRC. At that time, the JSRRC indicated that it could not verify if the Pleiku Air Base experienced rocket, mortar, and small arms fire on several occasions between November 1968 and September 1969. In this regard, the Board points out that while specific verification could not be made, requiring corroboration of every detail of a veteran's claimed stressors defines "corroboration" far too narrowly. See Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). In this regard, the Board points out that the failure of the JSRRC to verify the requested stressor does not constitute negative evidence against the claim. Significantly, evidence on file includes an excerpt from a 2006 Board decision indicating that the Board accepted as a valid and verifiable stressor in that case, an appellant's reports of rocket, mortar and other fire on Pleiku, between May and July 1969. In the September 2012 Remand, the Board made a specific finding, with application of any reasonable doubt in favor of the Veteran, that his claimed stressors regarding enemy attacks-which seem to be impliedly related to the Veteran's fear of hostile military activity-appear to be consistent with the places, types, and circumstances of the Veteran's service. In essence, resolving all reasonable doubt in the Veteran's favor (see 38 C.F.R. § 3.102), and consistent with recent regulatory amendments, the Board concluded that the Veteran's lay assertions may be accepted as sufficient evidence that these alleged stressors occurred. Thereafter, on VA examination of December 2012, the examiner concluded that a diagnosis of PTSD could not be sustained in the absence of a verified stressor. However, pursuant to the September 2012 Board Remand, that required element of a PTSD claim-credible evidence that a claimed in-service stressor occurred-had already been established and should not have been addressed by the examiner. Accordingly, given the flawed premise, the Board finds some inadequacies in the December 2012 examination report and opinion provided therein, and as a result, must assign the opinion limited probative value. In simplified form, the file contains a valid DSM-IV diagnosis of PTSD during the pendency of this claim that was linked to the Veteran's Vietnam experiences with a transportation unit to include receiving incoming enemy fire. Further the Veteran's lay accounts of being stationed in Pleiku between September 1968 to September 1969, during which time the base came under attack numerous times, were essentially verified through corroborating evidence in the form of a 2006 Board decision excerpt, and further analysis of whether the Veteran meets the criteria of 38 C.F. R. § 3.304(f)(3) is deemed unnecessary, as the criteria for the establishment of service connection for PTSD are arguably met. After careful consideration of all procurable and assembled data, when 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. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, given the facts noted above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD are met. See 38 C.F.R. § 3.304(f). ORDER Service connection for PTSD is granted. REMAND The Board's review of the claims file reveals that further RO action on the claim remaining on appeal, entitlement to service connection for a psychiatric disorder other than PTSD, is warranted. By virtue of the decision and order above, the Veteran has been granted service connection for PTSD. A private medical report reflects that an additional psychiatric diagnosis of chronic major depression was made in this case in 2005. In 2012, the Veteran was afforded a VA examination, at which time the examiner determined that the Veteran did not have symptoms which conformed to the diagnostic criteria for any psychiatric disorder. However, the examiner did acknowledge that the Veteran had subclinical depressive symptoms. Essentially, this conflicting evidence was not addressed or discussed by the examiner in 2012. In fairness to the Veteran and in order to resolve the matter of whether the Veteran does in fact have a psychiatric disorder other than PTSD for which service connection may be warranted, the RO should arrange for the Veteran to undergo VA examination by a psychiatrist or psychologist, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim remaining on appeal. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for further examination of the Veteran, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012).. The Board notes that it does not appear that the Veteran has received any psychiatric treatment through VA to this point. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA examination, by a psychiatrist or psychologist at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies, to include psychological testing, if warranted, should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current psychiatric disability(ies) other than PTSD, to particularly include major depression/depressive disorder. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability (a) had its onset in or is otherwise medically related to service, to include the conceded in-service stressor; or (b) was caused or is aggravated (worsened beyond natural progression) by the Veteran's service-connected PTSD. If aggravation by service-connected PTSD is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. Even if the examiner determines that a diagnosed psychiatric disability other than PTSD is not medically-related to service or to service-connected PTSD, he or she should indicate whether it is medically possible to distinguish the symptoms attributable to the Veteran's service-connected PTSD from those attributable to nonservice-connected psychiatric disability. Should the examiner find that the criteria for a diagnosis of any psychiatric disorder other than PTSD are not met, the reasons for such a finding should be discussed and reconciled with the diagnosis of chronic major depression, made by a private doctor in 2005. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs