Citation Nr: 1320033	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  09-45 289	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression.

2. Entitlement to service connection for pes planus.


REPRESENTATION

Appellant represented by:	Elizabeth F. Lunn, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1969 to March 1971, with additional service in the Army Reserve and the National Guard.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Board has broadened the issue of whether the Veteran is entitled to service connection for PTSD to include any acquired psychiatric disorder that may be attributed to service, pursuant to the holding in Clemons v. Shinseki, 23 Vet.App. 1 (2009) (holding claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts, which include claimant's description of history and symptoms, and VA should construe claim for service connection based on reasonable expectations of non-expert claimant).

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing at the Winston-Salem RO in December 2012. A copy of the transcript has been associated with the Veteran's file on the Virtual VA paperless claims processing system. Further review of the Virtual VA does not reveal any additional documents pertinent to the present appeal.

During the hearing, the Veteran presented testimony regarding his psychiatric disorder claim. However, he did not present testimony regarding his claim of service connection for pes planus; his counsel did not raise the issue and it was inadvertently not noted by the undersigned. Because the claim remains pending, and the Veteran's desires regarding presenting testimony in support of his claim are unclear, the Board will remand the issue to enable the Veteran through counsel to clarify this issue and if necessary, direct the RO to schedule a videoconference hearing with the undersigned. 

The issues of entitlement to service connection for a right shoulder disability and to a total disability rating based on individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). See Claim filed January 2008; Dr. T.R.P. letter dated February 7, 2008. Therefore, the Board does not have jurisdiction over them, and they are REFERRED to the RO for appropriate action. If the Veteran desires to pursue these claims, he should also contact the RO.


FINDING OF FACT

The evidence both for and against a finding that the Veteran has PTSD that is causally related to active duty service is in approximate balance.


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1154(a), 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274 at 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing to its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465 (1994). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied in decisions on compensation claims is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 
See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996). 

Service Connection for PTSD

The Veterans Claims 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

However, given the granting of the Veteran's claim, any discussion of the VCAA is not necessary. 

Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 
	
A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)).  

In cases such as this, where the Veteran's STRs are unavailable through no fault of his own, the law provides that VA has a heightened duty to explain its findings and conclusions, as well as a heightened duty to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).


In addition to the service connection criteria set forth above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which requires that it be diagnosed pursuant to the American Psychiatric Association  Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV) as the source of criteria for the diagnosis of claimed psychiatric disorders. 

DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. 

Generally, the occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. See Zarycki v. Brown, 6 Vet.App. 91, 97-98 (1993). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in combat with the enemy, as established by recognized military combat citations or other official records. Participation in combat, a determination that is to be made on a case-by-case basis, requires that a veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. 
See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003). See also Sizemore  v. Principi, 18 Vet. App. 264, 273-74 (2004). 

If VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor and his testimony must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet.App. 128 (1997); Moreau v. Brown, 9 Vet.App. 389 (1996). 

Prior to July 13, 2010, VA regulations and Federal court precedent decisions established that if the claimed stressor is not combat related, the veteran's lay testimony regarding his inservice stressor is insufficient, standing alone, to establish service connection and must be corroborated by credible evidence. See, e.g., Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283, 289 (1994). Court decisions have held that there is no requirement that such corroboration must be found in the service records. However, the credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996).

Effective July 13, 2010, VA has amended its rules for adjudicating disability compensation claims for posttraumatic stress disorder (PTSD) contained at 38 CFR § 3.304(f)  to relax the evidentiary standard for establishing the required in-service stressor in certain cases. The primary result of this recent amendment is the elimination of the requirement for corroborating evidence of the claimed in-service stressor if it is related to the veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and, (3) the Veteran's symptoms are related to the claimed stressor. The regulation amendment has no impact on PTSD claims that arise out of in-service diagnoses of PTSD, or PTSD stressors experienced during combat, internment as a prisoner-of-war, or as the result of personal assault. 

Specifically, 38 C.F.R. § 3.304(f)(3) , as revised effective July 13, 2010, provides as follows: 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) (2012).

The Veteran underwent a psychiatric evaluation at the Durham VA medical center (VAMC) in December 2003, for the purpose of assessing his mental health symptoms. He was diagnosed with PTSD and major depressive disorder, and assigned a GAF of 45. He reported two stressors: that he was minesweeping with his sergeant, who was killed by a claymore mine that the Veteran had passed; and, that he witnessed the death of a soldier, whom he had to leave behind when fleeing from the enemy. The psychologist found his symptoms comported with the requirements of the DSM-IV. See VA treatment record dated December 15, 2003.

The Veteran's treatment provider noted that he met the criteria for PTSD, and that his stressors were, per her designation, combat-related, including witnessing the death of others and being confronted with events that threatened his life.  See Dr. T.R.P. letter dated February 7, 2008.

In July 2008, the Veteran discussed his stressors in preparation for entrance into an in-patient PTSD treatment program. He reiterated that he had seen his sergeant killed by a roadside claymore mine, and that he had received small arms fire while driving Vietnamese workers back to their village. He also talked about seeing dead bodies lined along the road. See VA treatment dated July 3, 2008.

At discharge from his in-patient program, the Veteran underwent a psychiatric evaluation. He was diagnosed, in accordance with the DSM-IV, with PTSD, alcohol abuse in remission, and substance-abuse mood disorder (depression) in remission, although he also noted that the Veteran had bouts of depression as a result of his PTSD. He was assigned a GAF of 35. Many stressors were alleged, including: exposure to heavy fighting, war-related death, atrocities, seeing body bags; witnessing the death of his sergeant during minesweeping duties; picking up unpredictable local civilians to work at the base; guard duty; and, routine exposure to "dead bodies rotting in the sun." The discharge summary indicated that the Veteran responded to all of these experiences with fear, hopelessness, and horror. See VA treatment dated September 8, 2008.

At the April 2011 VA examination, the examiner opined that the Veteran's stressors related to fear of hostile military or terrorist activity. However, she did not diagnose PTSD because the Veteran's symptoms did not meet the requirements contained in the DSM-IV. Specifically, she did not find the Veteran to have clinically significant distress or impairment in social, occupational, and other areas of functioning. She diagnosed alcohol dependence in sustained remission and major depressive disorder, neither of which she attributed to service. See VA examination dated April 11, 2011.  

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A 
§ 5107(b) (West 2002); Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993) (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 claimant shall prevail upon the issue).

The Board finds the Veteran's statements regarding his stressors and experiences during active duty to be credible. The law provides that in each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The Veteran served in the Republic of Vietnam for nearly a year, in an engineering and construction company, which was tasked with building roads and laying pipelines - all primary combat service support activities that were likely to be subject to harassing fire as the Veteran has alleged. Thus, although his MOS was listed as cook, it is likely that he was involved in the company's supportive projects, which placed the members of the company in positions particularly vulnerable to the unpredictable behavior of enemy combatants.

The Veteran's stressors, which have been consistently reported throughout his medical history, are relating to the fear of hostile military or terrorist activity. This type of stressor must be considered and confirmed by a VA psychiatrist or psychologist as being sufficient to support a diagnosis of PTSD. 38 C.F.R. § 3.304(f)(3). Here, the VA examiner did not assess that his claimed stressors were adequate to support such a diagnosis, however, other VA psychiatrists opined to the contrary.  See Dr. T.R.P. letter dated February 7, 2008; See VA treatment dated September 8, 2008. Further, there is no evidence that his PTSD resulted from any other, non-military, stressor. 

Given VA's heightened duty to consider the benefit-of-the-doubt doctrine and the application of 38 U.S.C.A. § 1154(a) and that there is nothing in the record to contradict the Veteran's account of in-service events, the Board will grant service connection for an acquired psychiatric disorder. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).

The RO will assign an appropriate disability rating and effective date. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). 




ORDER

Service connection for an acquired psychiatric disorder is granted.


REMAND

As noted, a claim of service connection for pes planus was certified for review by the Board and remains pending. Although the Veteran presented testimony at the December 2012 hearing regarding his psychiatric claim, granted above, he did not present testimony regarding pes planus; his attorney did not note its pendency; and the undersigned did not discuss it at the hearing.

Because the claim remains pending and the Veteran's intentions as to pursuance of the benefit remain unclear, the Veteran will be afforded an opportunity to present testimony in support of the pes planus claim and the appeal will be remanded to the RO for this purpose.

It is the Veteran's due process right to have a hearing before a Travel Board hearing. However, IF THE VETERAN DECIDES TO PRESENT TESTIMONY AT A HEARING, he should consider requesting this hearing by videoconference between the Regional Office in Winston-Salem, North Carolina and the Board's offices in Washington, D.C. Such a decision would likely ultimately expedite the decision on his claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011) (hold that  a Veteran who has presented testimony before more than one Veterans Law Judge is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal). 

The claim of service connection for pes planus is therefore REMANDED to the RO for the following:

Contact the Veteran through his counsel and request that he clarify whether he desires to present testimony at a Board hearing. If the Veteran through counsel indicates that he desire to do so, and the Veteran through counsel advises that the Veteran desires a videoconference hearing, schedule such a hearing with the Board's hearing staff, TO BE CONDUCTED BY THE UNDERSIGNED AT NEXT AVAILABLE OPPORTUNITY. If the Veteran decides to have a Travel Board hearing, schedule such a hearing at the next available opportunity. If the Veteran advises that a hearing is no longer requested, return the appeal to the Board. 

The appellant has the right to submit additional evidence and argument on the matter or matters 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).


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs