Citation Nr: 1320712 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-35 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, other than PTSD, to include a mood disorder, schizophrenia, depression, a paranoid disorder, psychotic disorder, anxiety, and major depressive disorder. 3. Entitlement to service connection for hypertension, to include as secondary to PTSD or an acquired psychiatric disorder. 4. Entitlement to service connection for a heart disorder, to include as secondary to PTSD or an acquired psychiatric disorder. 5. Entitlement to service connection for renal insufficiency, claimed as a bilateral kidney disorder, to include as secondary to PTSD or an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from April 1997 to January 2002, and from January 2004 to February 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the November 2007 decision, the RO addressed the Veteran's psychiatric disorder claim as one for entitlement to service connection for PTSD. Upon review of the record, the Board has expanded the issue on appeal to include one for entitlement to service connection for an acquired psychiatric disorder other than PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim 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). The Veteran testified before the undersigned Veterans Law Judge in January 2013. A copy of the transcript is of record. The issues of entitlement to service connection for an acquired psychiatric disability (other than PTSD), hypertension, a heart disorder, and renal insufficiency are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The Veteran indicated that he was exposed to the actual death or threatened death of himself and others from hostile military activity, including mortar attacks; and, while not specifically verified, the claimed in-service stressor is consistent with the places, types, and circumstances of his service in Iraq and Kuwait in support of Operation Iraqi Freedom. 2. Having diagnosed the Veteran as having PTSD, a VA staff psychiatrist has determined that the claimed in-service stressor is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304(f)(3) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Entitlement to Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f)(3) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of service connection for PTSD is based primarily on the stressor of being under mortar attacks while serving in Iraq. The Veteran's DD 214 from his second period of active duty service reflects that he served in Kuwait and Iraq from February 15, 2004 through January 23, 2005, in support of Operation Iraqi Freedom. The Board notes that the provisions relating to the establishment of service connection for PTSD, found at 38 C.F.R. § 3.304(f), were amended, effective July 13, 2010. See 75 Fed. Reg. 39,843-39,852 (Jul. 13, 2010) and 75 Fed. Reg. 41,092 (Jul. 15, 2010) (effectuating a correction to the July 13, 2010 Federal Register). As set forth in the Federal Register, the revised provisions of 38 C.F.R. § 3.304(f) were made effective July 13, 2010, and apply to any claim that "[w]as appealed to the Board before July 13, 2010 but has not been decided by the Board as of that date." Id. This recent regulatory change has eliminated the requirement for corroboration of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. It is necessary that 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 service. 38 C.F.R. § 3.304(f)(3)(2012). For purposes of 38 C.F.R. § 3.304(f)(3), "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. Thus, with respect to the Veteran's allegations of experiencing mortar attacks, this regulatory change is applicable, because such relates to "fear of hostile military or terrorist activity." The record clearly demonstrates that he had service in Kuwait and Iraq. The Veteran's DD 214 for this time period reflects that his primary military specialty was that of a motor transport operator. A letter was submitted in September 2009 by D. H. who indicated that he had served with the Veteran in Iraq. He noted that the Veteran's site had been mortared on several occasions by the enemy. In a January 2005 in-service medical examination the Veteran indicated that he had seen coalition forces wounded, killed or dead during this deployment. He additionally indicated that he had felt in great danger of being killed during his deployment to Iraq. Given the totality of the evidence, the Board finds that the evidence favors a finding that the Veteran's claimed stressor occurred. Significantly, exposure to mortar attacks is consistent with the places, types, and circumstances of his service. The Board initially notes that while there are medical records indicating the Veteran does not have PTSD, there are various other records which confirm a diagnosis of PTSD in accordance with DSM-IV. See October 2008 VA Treatment Record. The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although the available service treatment records do not note any treatment for psychiatric issues, an October 2008 VA staff psychiatrist considered the Veteran's report of specific incidents, which occurred while he was in Iraq, which had bothered him over the years including exposure to mortar attacks. Based on his observations of the Veteran during this October 2008 psychiatric evaluation, it was his opinion that the Veteran was correctly diagnosed with PTSD and that this was the result of the trauma he had experienced in Iraq. There are no contradictory opinions of record. As noted above, in order to apply the recent regulatory change eliminating the requirement for corroboration of a claimed in-service stressor, it is necessary that 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. This was accomplished by a VA staff psychiatrist in 2008. Pursuant to this decision, the Board has made a credibility determination that the Veteran's in-service stressor occurred, as it is consistent with the places, types, and circumstances of his service. Additionally, as his stressor relates to his fear of hostile military or terrorist activity, and a VA staff psychiatrist has confirmed that the Veteran suffers from PTSD because of the military-related experience he reported, the Board finds that service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND As indicated previously, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to assist also includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. Acquired Psychiatric Disorder, Other than PTSD - As explained above, the Board has expanded the Veteran's psychiatric disorder claim to include entitlement to service connection for an acquired psychiatric disorder other than PTSD. Clemons `v. Shinseki. The Board notes that various treatment records in the Veteran's claims file and Virtual VA file (VVA) reflect that the Veteran has been diagnosed with an acquired psychiatric disorder to include a mood disorder, schizophrenia, depression, a paranoid disorder, psychotic disorder, anxiety, and major depressive disorder. In light of the expanded claim, the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded to provide the Veteran with appropriate notice, to obtain additional pertinent treatment records, and to afford the Veteran a VA examination in order to determine the nature and etiology of any acquired psychiatric disorders present during the pendency of this claim. Service Connection for Hypertension, Heart Disorder and Renal Insufficiency - A review of the Veteran's January 2013 Board hearing testimony reflects that he is essentially alleging service connection for hypertension, a heart disorder, and renal insufficiency, to include as secondary to his PTSD or an acquired psychiatric disorder. As such corrective VCAA notice regarding these specific relationships should be sent to the Veteran. Moreover, while on remand VA etiological opinions should be obtained to determine whether any of these disorders are related to the Veteran's now service-connected PTSD or any other acquired psychiatric disorder. VA Treatment Records - The Veteran has indicated that he has received VA treatment from the VA Medical Center (VAMC) in North Little Rock, Central Arkansas Veterans Healthcare System Eugene J. Towbin Healthcare Center, and the Community Based Outpatient Clinic (COBC) in Mobile, Alabama. While some records from the CBOC in Mobile, Alabama have already been associated with the claims file, it is unclear as to whether there may be additional records. Moreover, all records from the North Little Rock VAMC should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC/RO should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA outstanding clinical records pertaining to the Veteran from the VA Medical Center in North Little Rock, Central Arkansas Veterans Healthcare System Eugene J. Towbin Healthcare Center, and the CBOC in Mobile, Alabama. 2. The Veteran and his representative should be provided with all required VCAA notice in response to the claim for service connection for an acquired psychiatric disorder, other than PTSD. A copy of the notice letter should be included in the claims file. 3. Send the Veteran corrective VCAA notice pertaining to the issues of entitlement to service connection for hypertension, to include as secondary to PTSD or an acquired psychiatric disorder; entitlement to service connection for a heart disorder, to include as secondary to PTSD or an acquired psychiatric disorder; and entitlement to service connection for renal insufficiency, claimed as a bilateral kidney disorder, to include as secondary to PTSD or an acquired psychiatric disorder. 4. After completing the above listed development, schedule the Veteran for VA examination which addresses the nature and etiology of his acquired psychiatric disability other than PTSD, to include a mood disorder, schizophrenia, depression, a paranoid disorder, psychotic disorder, anxiety, and major depressive disorder. The claims file must be provided to the examiner(s) for review. Based on a review of the claims file and the results of the Veteran's psychiatric examination, the examiner(s) is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disability other than PTSD, to include a mood disorder, schizophrenia, depression, a paranoid disorder, psychotic disorder, anxiety, and major depressive disorder, is related to active service or any incident of such service. The VA examiner should specifically determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension (diagnosed at any time during the period on appeal), was caused, or aggravated, by his now service-connected PTSD or any other acquired psychiatric disorder. The VA examiner should specifically determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's heart disorder (diagnosed at any time during the period on appeal), was caused, or aggravated, by his now service-connected PTSD or any other acquired psychiatric disorder. The VA examiner should specifically determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's renal insufficiency (diagnosed at any time during the period on appeal), was caused, or aggravated, by his now service-connected PTSD or any other acquired psychiatric disorder. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If secondary aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the (hypertension, heart disorder, or renal insufficiency) (i.e., a baseline) before the onset of the aggravation. A complete rationale should be provided for any opinion(s) expressed. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. The RO should then readjudicate the claims for entitlement to service connection. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review. 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). These claims 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs