Citation Nr: 1321063 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 10-13 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1962 to May 1964 with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2013, the Veteran testified in a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is located in the Veteran's file in "Virtual VA." In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the Virtual VA system to ensure a complete assessment of the evidence. In this regard, additional VA treatment records were added to the Veteran's file in Virtual VA after the October 2012 supplemental statement of the case, which include clinical treatment of the claimed psychiatric condition listed above. The Veteran has not submitted a waiver of his right to review of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304(c) (2012). However, as the issue of service connection is granted herein, the Board may proceed without prejudice to the Veteran. Also, the United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, either expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of an initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based is already service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board finds that, under the specific facts of this case, the claim for a TDIU is a component of the claim for service connection for an acquired psychiatric disability, to include PTSD, notwithstanding the prior adjudication of a TDIU by the RO. In this case, the grant of service connection for an acquired psychiatric disability, to include PTSD, necessarily reflects an additional service-connected disability and a different, combined rating percentage assumption than were present at the time of the RO's initial adjudication of TDIU. As such, after reviewing the contentions and evidence of record and as further discussed in the Remand section below, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. The Veteran has a qualifying DSM-IV diagnosis of PTSD. 2. The Veteran's claimed in-service stressor is related to the threatened death or injury of himself and others from hostile military activity and his response to that event involved a psychological state of fear and helplessness. 3. A VA psychiatrist has confirmed that the claimed in-service stressor is adequate to support a diagnosis of PTSD, and that the Veteran's PTSD symptoms are related to the claimed stressor. 4. The Veteran's claimed in-service stressor is consistent with the places, types, and circumstances of his service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The claim of service connection for an acquired psychiatric disability, to include PTSD, has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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. See 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125 (2012) (requiring PTSD diagnoses to conform to the criteria in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV)). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). Participation in combat, a determination that is to be made on a case-by-case basis applying the reasonable doubt standard, requires that a veteran personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99; Moran v. Principi, 17 Vet. App. 149 (2003); see also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If a stressor claimed by a veteran is related to a 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 a veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of a veteran's service, then the requirement for corroborating the stressor is eliminated. "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)(3) (as amended by 75 Fed. Reg. 39843 (effective July 12, 2010)). In rendering a decision on appeal the Board must also 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. 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"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. at 498. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis of Service Connection for Psychiatric Disorder The Veteran did not participate in combat with the enemy during service and he does not so contend. The Veteran has consistently identified one non-combat stressor and he further described the same stressor in a November 2009 statement, during October 2010 and September 2012 VA psychiatric examinations, and during an April 2013 Board hearing. The Veteran reported that on November 1, 1963, during service in the Republic of Vietnam as a radio repairman, he and his unit were assigned to guard duty in bunkers (which he has also described as foxholes or signal huts). During that time, he stated that he heard artillery and mortar fire and feared that they were under attack; however, they were not given ammunition for the rifles for an entire day. He later discovered that the South Vietnamese began a coup on November 1, 1963. In this regard, the Board notes that the Veteran's personnel file, to include the DD Form 214, reflects that he served in Vietnam from July 1963 to May 1964 as a field radio repairman. These records are sufficient to establish that the Veteran was in Vietnam during the period of his alleged in-service stressor. After a review of all the evidence of record, lay and medical, the Board first finds that the evidence is in equipoise on the question of whether the Veteran has a qualifying DSM-IV diagnosis of PTSD. Evidence in support of the finding is included in November 2007 and May 2012 letters from the Veteran's treating VA therapist, a May 2008 letter from the Veteran's treating VA psychiatrist, and numerous VA treatment records. In particular, the letters from the Veteran's treating VA therapist and psychiatrist accurately identify the DSM-IV diagnosis of PTSD as 309.81 based on their years-long, personal treatment of the Veteran. Evidence which tends to weigh against a finding of a qualifying DSM-IV PTSD diagnosis is included in both VA psychiatric examinations from October 2010 and September 2012. After a psychiatric evaluation of the Veteran, both VA examiners concluded that the Veteran did not meet the DSM-IV criteria for PTSD; however, the Veteran himself stated that these examinations were brief and were not adequate to assist in determining the claim. In the present case, the Board notes that each of the examiners who declined to diagnose PTSD saw the Veteran only on a single occasion, whereas the Veteran's treating VA therapist and psychiatrist who diagnosed PTSD had the opportunity to evaluate the Veteran on multiple occasions, and were therefore privy to a more complete picture of his current psychiatric state. The Board recognizes that the Court has not fully embraced a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of any other examiner. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-73. Regardless, the length of an examiner's opportunity or opportunities to examine a claimant may be considered in assigning probative weight. Guerrieri, 4 Vet. App. at 471-73. Given the evidence is at least in equipoise, with consideration of the benefit-of-the-doubt rule, the Board will resolve reasonable doubt to find that the Veteran has a qualifying DSM-IV diagnosis of PTSD. Also in this regard, the Veteran has been diagnosed with depressive disorder, adjustment disorder with anxiety, and polysubstance abuse; however, the Veteran's depression and anxiety symptoms, and self-medicating, have also been included in his diagnosis of PTSD, as indicated by his various, treating VA mental health professionals during psychiatric evaluations. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so). Indeed, as noted on the title page of this decision, the Veteran's claim of service connection for an acquired psychiatric disability encompasses all of his psychiatric symptomatology. See also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Board next finds that the evidence of record is at least in equipoise on the questions of whether the claimed in-service stressor is related to the Veteran's fear of hostile military or terrorist activity during service and whether the Veteran now has PTSD. The evidence weighing against the claim includes that the September 2012 VA examiner did not find that the Veteran met the criteria for a PTSD diagnosis. Evidence against a finding that the claimed in-service stressor is adequate to support a diagnosis of PTSD is included in the October 2010 VA examination, at which the examiner opined that there were no behavioral or social changes, re-experiencing, or heightened physiological arousal (symptoms) due to the Veteran's service, nor was there any relationship to a fear of hostile military or terrorist activity. Evidence favorable to the Veteran's claim is included in the September 2012 VA examination report, which reflects the examiner's assessment that, although the Veteran did not currently meet the criteria for a diagnosis of PTSD, the Veteran had experienced, witnessed, or had been confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the response involved intense fear, helplessness, or horror. The September 2012 VA examiner also indicated that the claimed stressor is related to the Veteran's fear of hostile military or terrorist activity. Such evidence by a VA psychiatrist confirms that the claimed in-service stressor is adequate to support a diagnosis of PTSD. Evidence in support of a finding that the claimed in-service stressor is adequate to support a diagnosis of PTSD is reflected in multiple VA psychiatric treatment records. Pursuant to the clinical diagnosis of PTSD, the Veteran's treating VA therapist indicated in a February 2008 letter that, with regard to the severity of the Veteran's PTSD symptoms, he displayed an extremely distressed increase of reliving/recurring his experiences in Vietnam, reminders of his experiences in Vietnam through media outlets, and traumatic events from his Vietnam experience. A March 2008 VA treatment report from the attending psychiatrist noted that the Veteran reported difficulty sleeping with daytime fatigue, anxiety, restlessness, nightmares interfering with sleep, intrusive memories triggered by war and general preoccupation with the carnage, checking his home at night, avoiding and withdrawing, crying spells, depression, and poor concentration. At that time, PTSD was included in the Veteran's Problem List. Also, in the May 2009 letter, the Veteran's treating VA psychiatrist indicated that the Veteran was evaluated and diagnosed with "combat (Vietnam) related [PTSD], chronic, delayed type." In this regard, while the Veteran is not a combat Veteran for VA compensation purposes, the Veteran's VA psychiatrist indicated "Vietnam" related PTSD. A May 2012 letter from the Veteran's VA therapist included the Veteran's Axis IV criteria, which is for reporting psychosocial and environmental problems that may affect the diagnosis, treatment, and prognosis of mental disorders (Axis I and II). See DSM-IV. There, the VA therapist indicated that the Veteran had problems with primary support group and exposure to war. While the Veteran's treating VA therapist is not a VA psychologist or psychiatrist, as required by VA regulation, the therapist's findings and opinions support the other favorable evidence of record, including from VA psychiatrists, and serve to bolster the finding that the claimed in-service stressor is adequate to support a diagnosis of PTSD, and that the Veteran's PTSD symptoms are related to the claimed stressor. The VA authorized psychiatrists and therapist, who have reviewed and discussed the Veterans records in detail, who have interviewed the Veteran with regard to his claimed in-service stressor, and have adequately addressed the DSM-IV criteria for a diagnosis of PTSD, have collectively provided competent, credible, and probative evidence with regard to the Veteran's current diagnosis and the etiology of that diagnosis. The VA psychiatrists and therapist's diagnosis and opinions are based on an accurate factual background and their findings are well-supported by the lay and medical evidence of record. The Veteran's claimed stressor is consistent with the places, types, and circumstances of his service as he served in Vietnam as a field radio repairman. Based on this evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has a qualifying DSM-IV diagnosis of PTSD, and the claimed in-service stressor is related to the Veteran's fear of hostile military or terrorist activity. VA psychiatrists have confirmed that the claimed in-service stressor is adequate to support a diagnosis of PTSD, and the Veteran's PTSD symptoms are related to the claimed stressor. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is granted. REMAND In the decision above, the Board has granted service connection for an acquired psychiatric disability, to include PTSD. As previously noted, the RO adjudicated the issue of a TDIU in an October 2009 rating decision. While a May 2009 VA treatment record, which demonstrated evidence of unemployability due to the now service-connected PTSD, was of record at the time of the October 2009 rating decision, an acquired psychiatric disability, to include PTSD, was not service connected at that time; therefore, the occupational impairment associated with the (now service-connected) psychiatric disability was not considered by the RO in the earlier adjudication of a TDIU. In light of the grant of service connection for psychiatric disorder including PTSD in this Board decision, which will be made effective the date of receipt of claim for service connection, with the potential effect of the initial rating for psychiatric disorder including PTSD to change the combined schedular rating or provide one rating at 40 percent, the RO should reconsider the issue of TDIU. See 38 C.F.R. §§ 4.16, 4.25 (2012). Even if the combined schedular criteria for consideration of TDIU of 38 C.F.R. § 4.16(a) are not met, the additional occupational impairment and symptoms due to the service-connected PTSD will need to be considered to determine whether referral for TDIU under the provisions of 38 C.F.R. § 4.16(b) is warranted. Accordingly, the issue of a TDIU is REMANDED for the following action: After implementing the Board's decision to grant service connection for an acquired psychiatric disability, to include PTSD, and accomplishing any additional notification and/or development deemed warranted, the issue of entitlement to a TDIU should be readjudicated in light of all the evidence of record, considering additional occupational impairment caused by the PTSD, along with all other service-connected disabilities. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with an appropriate supplemental statement of the case, and should be afforded the appropriate time period 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). ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs