Citation Nr: 1319918 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 11-03 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970, to include a tour in the Republic of Vietnam. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran then perfected a timely appeal of this issue. Jurisdiction of this appeal has since been transferred to the RO in Winston-Salem, North Carolina. In his February 2011 Substantive Appeal (on VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ) of the Board at the local RO (Travel Board hearing). In a July 2012 letter, he was notified that his hearing had been scheduled for July 12, 2012. In a subsequent July 2012 letter, the Veteran stated that he wished to withdraw his request for a hearing. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). The Board notes that the psychiatric claim on appeal has previously been developed to include only PTSD. The United States Court of Appeals for Veterans Claims (Court) has recently held that the scope of a mental health disorder claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the claim on appeal has been recharacterized as an acquired psychiatric disorder, to include the Veteran's current psychiatric diagnoses. The Veteran's Virtual VA paperless claims file was also reviewed and considered in preparing this decision and remand, along with the Veteran's paper claims file. The issue of entitlement to service connection for an acquired psychiatric disorder, not including PTSD but including MDD, 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 1. The Veteran has a current DSM-IV diagnosis of PTSD. 2. During his active military service, the Veteran served in the Republic of Vietnam, and was exposed to numerous injuries and killings. 3. After resolving reasonable doubt in the Veteran's favor, his PTSD has been related to an in-service stressor. CONCLUSION OF LAW PTSD was incurred as a result of the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the Board is granting the PTSD claim on appeal. Thus, there is no prejudice to the Veteran and no further discussion of the VCAA is required. II. Service Connection The Veteran contends that he is entitled to service connection for his PTSD. In general, service connection will be granted for a disorder resulting from an injury or disease incurred in or aggravated by the active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection for PTSD, in particular, requires: (1) a medical diagnosis of the disorder; (2) credible supporting evidence of the claimed in-service stressor actually occurred; and, (3) a link, as established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Section 4.125(a) of 38 C.F.R. incorporates DSM-IV as the governing criteria for diagnosing PTSD. Where the claimed stressor is not related to combat, a Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). However, during the pendency of this appeal, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to his/her 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 - provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's active military service. Id. After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Here, regarding a current DSM-IV PTSD diagnosis, there is probative evidence for and against the Veteran's claim as to whether he has this requisite diagnosis of PTSD. 38 C.F.R. § 3.304(f). Specifically, at the April 2007 VA psychiatric examination, following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that the Veteran had a current DSM-IV PTSD diagnosis and no other diagnoses. In contrast, the October 2010 VA examiner found that the Veteran did not have a DSM-IV diagnosis of PTSD, and instead had a diagnosis of alcohol dependence. The October 2010 VA examiner reiterated these views in a January 2011 VA addendum medical opinion. The Veteran's private treatment records do not document a diagnosis of PTSD, but instead contain a diagnosis of MDD. The Veteran's VA treatment records do not contain a diagnosis of PTSD. The Board finds that there is probative evidence for and against the Veteran's claim as to whether he has this requisite DSM-IV diagnosis of PTSD. The Board also notes that the Veteran does not need to provide evidence of a diagnosis throughout the entire pendency of the appeal in order for service connection to be granted. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for disability compensation is filed or during the pendency of that claim even though the disability resolves prior to adjudication); see also 38 C.F.R. § 4.2 ("Different examiners, at different times, will not describe the same disability in the same language . . . . It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling various reports into a consistent picture . . . "); see, too, 38 C.F.R. § 4.125 ("if the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition."). Thus, VA must resolve this reasonable doubt in the Veteran's favor and conclude he has the necessary DSM-IV PTSD diagnosis. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The first element of a successful PTSD claim has been established. 38 C.F.R. § 3.304(f) Under the revised PTSD regulations, the evidence of record establishes that the Veteran's claimed PTSD stressor relates to a fear of hostile military or terrorist activity. Specifically, in a March 2008 statement, the Veteran stated that, while he was stationed in the Republic of Vietnam during the Vietnam War, he witnessed lots of death and injuries to his fellow soliders. In his January 2011 Substantive Appeal, the Veteran also reported that he was in combat in the Republic of Vietnam. In this regard, the Veteran's DD-214 Form confirms that he served in the Republic of Vietnam during the Vietnam War. The Board notes that the Veteran's military occupational specialty (MOS) was that of an Infantryman. However, his personnel records also document that he was a Rifleman. The Veteran submitted photos of him and fellow soliders carrying large weapons while stationed in the Republic of Vietnam. Thus, given this information, the Board finds the Veteran's account of his in-service stressor to be competent and credible. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Therefore, the Board finds that his statements of witnessing death and injuries to be consistent with the places, types, and circumstances of his active military service (to include his MOS and assigned units). Thus, the Board finds that an in-service PTSD stressor has been demonstrated. 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39843 (July 13, 2010). With respect to evidence of a nexus, at the April 2007 VA psychiatric examination, the VA examiner diagnosed the Veteran with PTSD. In rendering this diagnosis, the examiner documented the in-service stressors discussed above. The examiner also noted that the Veteran was exposed to frequent skirmishes with the enemy while stationed in the Republic of Vietnam. He had to pick up dead soliders and put them in body bags and load them onto trucks and planes. The examiner indicated that, based on the Veteran's reports, he was exposed to combat fairly consistently while stationed in the Republic of Vietnam. The April 2007 VA examiner, based on a review of the claims file, then determined that the Veteran's in-service stressors were the cause of his PTSD. The examiner noted that the Veteran did not have any post-military stressors. As the VA psychiatric examiner indicated that the Veteran's claimed stressors were adequate to support a diagnosis of PTSD, and that the Veteran's symptoms were related to these stressors, the Board finds that a competent and credible link between the Veteran's current symptomatology and his claimed in-service stressors has been demonstrated. See 38 C.F.R. § 3.304(f)(3). In summary, for the reasons and bases expressed above, and with resolution of reasonable doubt in the Veteran's favor, the Board concludes that the evidence supports the Veteran's claim of entitlement to service connection for PTSD. The benefit sought on appeal is accordingly granted. The Veteran's remaining psychiatric diagnoses will be discussed in the remand below. ORDER The claim for service connection for PTSD is granted. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the acquired psychiatric disorder claim can be properly adjudicated. First, the Veteran has not been provided with a proper duty-to-assist notice letter for his acquired psychiatric disorder claim. His previous notice letters have only dealt with his PTSD claim. As the Veteran is unrepresented in his appeal, the Board finds that this notice is necessary. The Veteran must be provided with this requisite notice before his claim can be decided on the merits. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; see Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the most recent outpatient treatment records from the VA Medical Center (VAMC) in Salisbury, North Carolina, are dated from February 2009. All pertinent records since this date should be obtained and added to the claims file. Upon remand, the Veteran's pertinent private treatment records should also be updated. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a duty-to-assist notice letter pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes, but is not limited to, an explanation as to what information or evidence is needed to substantiate a claim for entitlement to service connection for an acquired psychiatric disorder, to include MDD, but not including PTSD. Additionally, this letter should comply with the case of Dingess, 19 Vet. App. at 473. 2. Obtain all pertinent VA outpatient treatment records from the Salisbury, North Carolina, VAMC since February 2009 that have not been secured for inclusion in the record. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no new records are associated with the claims file, a written determination should be included in the claims file. 3. Update all private treatment records currently contained in the claims file. If no new records are associated with the claims file, a written determination should be included in the claims file. 4. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include MDD, but not including PTSD. The Veteran must be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. 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 or by the Court 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs