Citation Nr: 1319455 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 08-07 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for Persian Gulf Syndrome, to include as due to an undiagnosed illness. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to June 1979 and from September 1990 to April 1991. He served in Southwest Asia from October 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The claim for Persian Gulf Syndrome 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. FINDINGS OF FACT Resolving reasonable doubt in favor of the Veteran, he has PTSD that is causally or etiologically related to his in-service military stressors. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304(f), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board believes no discussion of compliance with the notice and assistance provisions is necessary at this time. There is no prejudice to the Veteran in light of the award of service connection in the instant decision. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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). For some 'chronic diseases,' such as a psychosis, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this decision, the Board has considered all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). On the question of the occurrence of an in-service stressor to support the diagnosis of PTSD, the evidence necessary to establish the occurrence of an in-service stressor varies depending on whether or not the Veteran engaged in combat with the enemy. Gaines v. West, 11 Vet. App. 353, 358 (1998). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressor is related to combat, the veteran's lay testimony regarding the reported stressor must be accepted as conclusive evidence as to the actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). The phrase "engaged in combat with the enemy" means that the veteran must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. The fact that the veteran served in a "combat zone" does not necessarily mean that he engaged in combat against the enemy. Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized citations or other official records. No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each item. Any assertions of combat service are not ignored, but are evaluated along with other evidence. A mere assertion of combat service, alone, is insufficient to establish this fact. VAOPGCPREC 12-99; Zarycki v. Brown, 6 Vet. App. 91 (1993) (mere presence in a combat zone is not sufficient to establish combat service). The Veteran seeks entitlement to service connection for PTSD. Specifically, he argues that PTSD is the result of traumatic experiences suffered during active military service while performing duties as a Graves Registration and Internment Specialist. He claims that he had to collect and identify bodies and body parts and prepare them to be sent to the United States. He further asserts that he had to bury bodies and body pieces of Iraqi soldiers in shallow graves. He claimed that he witnessed the death of an Iraqi soldier while searching for bodies. The Veteran has submitted private psychiatric treatment records from Drs. A.P.H., A.B.C. and I.A.B.C. dated between 2007 and 2011. These records show the Veteran was diagnosed with PTSD. The diagnosis was based on stressors arising from his duties as a Graves Registration specialist. Notably, in October 2007, Dr. A.B.C. indicated the Veteran was diagnosed with PTSD. Dr. A.B.C. further noted the Veteran was a "victim of his work picking up dead bodies in the Persian Gulf." In December 2007, Dr. A.B.C. opined the Veteran had both PTSD and major depression that arose directly as a result of his active participation in the Persian Gulf between 1990 and 1991 recovering dead bodies. The Veteran submitted lay statements from his daughter and friends in support of his claim. They all indicate the Veteran was a different man after his service in the Persian Gulf, to include changes in mood and behavior. He informed his friends that he had flashbacks of service in Iraq, to include burying Iraqi soldiers and civilians, as well as witnessing the death of an Iraqi soldier. For a stressor to be sufficient for PTSD, the stressor must meet two requirements: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or a threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror." Pentecost v. Principi, 16 Vet. App. 124, 127 (2002). The Board finds that entitlement to service connection for PTSD is warranted. Service personnel records confirm he was in Southwest Asia from October 1990 to April 1991. He performed duties as a Grave Registration Specialist and Internment Specialist with the 311th QM Co. He received pay for duty in imminent danger area between October 1990 and April 1991. He participated in the campaigns in Defense of Saudi Arabia and the Liberation and Defense of Kuwait. He was awarded the Southwest Asia Service Medal with 2 Bronze Stars and the Kuwait Liberation Medal. The Veteran's private providers have confirmed that the Veteran has PTSD related to stressful experiences in service performing duties recovering bodies. The Board is cognizant that the VA examiners indicated the Veteran did not meet the criteria for PTSD as he did not fulfill the symptoms criteria for persistent avoidance of the stimulus or that the trauma caused impairment in social, occupational or other areas of functioning; however, this is contradicted by the private medical evidence. Notably, Dr. ABC indicated the Veteran had "maladjustment responses when facing stimuli that remind him or symbolize his experiences in the military service in the Persian Gulf." See treatment noted dated June 22, 2011. In a letter received in July 2011, Dr. IAB noted the Veteran was receiving psychiatric treatment for PTSD and his symptoms affected his overall functioning and he was completely disabled to work and perform any type of gainful employment. The Board would additionally note the Veteran reported receiving Social Security Disability due to his PTSD and depression. The Board has no reason to doubt his veracity. The Board would also point out at this juncture that the June 2011 VA examiner found that the Veteran met the criteria for persistent re-experiencing the traumatic event and had persistent hyper arousal. In October 2012, the VA examiner indicated the Veteran experienced an event that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others and his response involved intense fear, helplessness or horror; recurrent distressing dreams of the event; markedly diminished interest or participation in significant activities; and difficulty falling or staying asleep. The Board finds that the probative value of the negative opinions is diminished in light of the cumulative evidence of record, i.e. the Veteran's confirmed stressors and private medical evidence showing PTSD is related to such stressors. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guarneri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the credibility and weight to the attached medical opinions are within the province of the Board). In light of this, the Board finds that, at minimum, the evidence in this case is in equipoise regarding the question of whether the Veteran's current PTSD is related to his military service. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for PTSD is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for PTSD is granted subject to the controlling regulations governing monetary awards. REMAND The Veteran additionally claims entitlement to service connection for Persian Gulf Syndrome, to include as due to undiagnosed illness. A preliminary review of the record discloses this matter is not ready for appellate disposition. The Veteran filed a claim for Persian Gulf Syndrome in January 2006. The RO sent a letter to the Veteran in January 2006, which indicated that "[a]t this time we cannot consider your application for service-connected Persian Gulf Syndrome." The RO explained that they needed to know the specific disabilities/conditions from which he was suffering. The Veteran responded in March 2006 and indicated that he tired easily, could not walk for long periods of times, and had muscle pains. See VA Form 21-4138 received in March 2006. The Veteran also indicated he had high blood pressure and high blood sugar, but these claims were denied in June 2009 and not appealed. The Veteran has not received sufficient notice with respect to this claim. He has not been advised of the information and evidence necessary to substantiate the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A,; see also 38 C.F.R. § 3.102, 3.156(a). Appropriate notice should be provided on remand. The Veteran was not afforded a VA examination in connection with his Persian Gulf Syndrome claim. As noted above, he claims that he tired easily, could not walk for long periods of times, and had muscle pains. VA treatment records contain treatment for sleeplessness (possible apnea) and symptoms associated with a trigger finger. The Veteran's service personnel records confirm he was stationed in the Persian Gulf from October 1990 to April 1991. An examination and opinion are necessary to determine whether there is any current manifestations of an undiagnosed illness related to active military service in the Persian Gulf. 38 C.F.R. §§ 3.159(c)(4), 3.317; see McClendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the most recent VA outpatient treatment records associated with the record are dated in June 2012. Updated records of any subsequent treatment the Veteran has received for the claimed Persian Gulf Syndrome are pertinent evidence that must be secured. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. The RO should ensure that all due process requirements in these matters under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) are met. 2. Obtain copies of all pertinent outstanding VA treatment records dated from June 2012 to the present. All requests for records and their responses must be clearly delineated in the claims folder. 3. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine whether the claimed symptom(s) constitute an undiagnosed illness, a medically unexplained chronic multi-system illness, chronic fatigue syndrome, or are otherwise related to disability traceable to military service. All indicated tests and studies should be conducted. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must made available to the examiner for review. If the examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated tests or studies must be completed. The examiner should describe all findings in detail. All current diseases should be clearly reported. The examiner should be notified that the Veteran is claiming an undiagnosed illness based on his Persian Gulf service. The examiner should also be notified that the Veteran served in Southwest Asia from October 1990 to April 1991. Based on the examination and review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's symptomatology (claimed as, but not limited to, tiring easily, difficulty walking for long periods, and muscle pains) constitutes: (a) a medically unexplained chronic multi-system illness (i.e. a cluster of signs or symptoms; a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities). If so, the examiner should also describe the manifestations of the illness and its severity); (b) an undiagnosed illness; (c) a diagnosed disease or disability, that otherwise had its onset in service or is related to a disease or injury in service. The examiner should provide an explanation for each opinion. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed conditions. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The absence of evidence of treatment for the claimed conditions in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 4. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record, to include any pertinent evidence contained within Virtual VA. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs