Citation Nr: 1324088	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  06-18 223	)	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 an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and chronic depression.

2.  Entitlement to service connection for a skin disorder, to include as due to exposure to herbicides.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Edwards, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1968 to January 1970.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.

The Veteran originally filed a claim limited to entitlement to service connection for posttraumatic stress disorder (PTSD) and chronic depression.  As is discussed in more detail below, the medical evidence of record indicates that the Veteran has been diagnosed with various mental conditions.  Although not claimed by the Veteran, the Board will expand his original claim to include all acquired psychiatric disorders.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness).

In August 2012, the Board remanded these claims for additional development.  Unfortunately, the issue of entitlement to service connection for a skin disorder, to include as due to exposure to herbicides, 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.


FINDING OF FACT

The Veteran's acquired psychiatric disorder is causally or etiologically due to service.



CONCLUSION OF LAW

Service connection for an acquired psychiatric disorder is established.  38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Sup. 2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304(f) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

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 & Supp. 2012); 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.  Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources.

II.  Entitlement to Service Connection for an Acquired Psychiatric Disorder, Claimed as PTSD and Chronic Depression

The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder and chronic depression.  He asserts his current psychiatric disorders are a result of his experiences during service.

Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Generally, in order to prevail on the issue of service connection on the merits, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Service treatment records were reviewed.  The Veteran's entrance examination from November 1967 did not note any psychiatric abnormalities.  There are no complaints, symptoms, or diagnoses of any psychiatric disorders during service.  The Veteran's separation examination from January 1970 did not note any abnormalities.

Post-service records were reviewed.  The Veteran asserts that he received treatment in the 1970s at a VA Medical Center.  These records have yet to be located.  However, more current VA records indicate he has been diagnosed with anxiety, PTSD, and depression.  See December 2003 treatment note and December 2007 Active Problem List.

Records indicate the Veteran has also been treated privately.  A private psychiatric evaluation from January 2005 diagnosed the Veteran with major depressive disorder and PTSD (remission).  

Similarly, in November 2005, the Veteran sought treatment with a private psychiatrist, Dr. O.  The Veteran reported that after returning from Vietnam, he was treated in the VA Hospital in Puerto Rico, but did not continue treatment.  He reported that he then began to have nightmares about the war and that he cannot watch war movies because he becomes anxious and thinks about his peers that died in the war.  The psychiatrist diagnosed the Veteran with generalized anxiety disorder, posttraumatic event, and vascular type dementia.  

The Veteran was afforded a VA examination in March 2005.  It was noted that in April 2004, the Veteran was diagnosed with depression, rule out mood disorder due to medical condition, and PTSD.  The Veteran did not describe any specific stressors.  It was noted that he did not meet the criteria for PTSD; however, he was diagnosed with depressive disorder, not otherwise specified.  No medical opinion regarding the etiology of his diagnosed psychiatric disorder was given.

VA outpatient records indicate he has attended group therapy sessions at the VA PTSD program in 2006 and 2008.

The Veteran was afforded a VA examination in September 2011.  After examination, he was diagnosed with depressive disorder, not otherwise specified.  It was noted that several of his peers died in combat; however, his symptoms did not meet the diagnostic criteria for PTSD.  No medical opinion was provided.  

In May 2008, Dr. O submitted an additional statement indicating that the Veteran was under pharmacologic treatment and psychotherapy since January 2006.  The psychiatrist stated that the Veteran continues to have symptoms of anxiety, nightmares related to the war, changes in mood, periods of disorientation, depressive symptoms, disorganized thoughts, irritability, and difficulty sleeping.  The psychiatrist stated that these symptoms are secondary to war events in Vietnam in 1968.  The psychiatrist listed the Veteran's diagnoses as severe recurrent major depression/chronic posttraumatic event.

The Veteran was afforded a VA examination in September 2012.  He was diagnosed with depression, not otherwise specified, and it was noted that he did not meet the diagnostic criteria for PTSD.  The examiner opined that there was no relation between his mental diagnosis and his active service, as there was a time gap of 35 years between his time in service and the evidence of record indicating a diagnosis of a mental disorder.

The Veteran has asserted that his symptoms began shortly after service and have continued to date.  The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

It is the function of the Board to resolve all doubt in favor of the Veteran.  Here, when the Veteran's statements, post-service treatment records, VA medical opinions, and private medical opinions are considered, the Board finds that the evidence is at least in equipoise.

The Board notes that although the VA examiner from September 2012 opined that the Veteran's current depressive disorder is not due to his time in service, the examiner based that opinion on the extensive time gap between the Veteran's time in service and documented treatment post-service.  However, importantly, the Veteran has asserted that he began experiencing psychiatric symptoms shortly after service, and sought treatment in 1970.  Furthermore, the Veteran's private treating psychiatrists have opined that his current disorders are a result of his time in service.  As such, the evidence is in equipoise and the Board concludes that service connection for an acquired psychiatric disorder, variously diagnosed, is granted.


ORDER

Entitlement to service connection for an acquired psychiatric disorder is granted.


REMAND

The Veteran seeks entitlement to service connection for a skin disorder, to include as due to exposure to herbicides.  The Board finds a remand is necessary before the claim can be adjudicated.

The Veteran was afforded a VA examination in April 2005.  The Veteran reported a history of recurrent boils on the face and inguinal area during his time in service and that they are recurrent.  He also reported a fungal infection that started during service and continues to present.  Importantly, the Board notes that a skin disorder is clearly a disability that lends itself to lay observation.  See McCartt v. West, 12 Vet. App. 164 (1999).  At the time of the April 2005 VA examination, the Veteran was diagnosed with tinea pedis and an unknown skin disease, noting that small skin lesions were present.  The examiner noted that the Veteran's skin conditions were not due to Agent Orange exposure; however, no medical opinion was given regarding whether his current skin disorders began during service or are causally or etiologically due to service (other than exposure to Agent Orange).  As such, the Board finds a remand is necessary to obtain a medical opinion.

Any updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions:
 
1.  Obtain and associate with the claims file all updated treatment records.  

2.  Obtain an addendum opinion to the April 2005 VA skin examination.  If deemed necessary by the examiner, afford the Veteran an in-person examination for his claimed skin disorder.  Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.  The examiner is requested to review all pertinent records associated with the claims file.

After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent):

a)  that the Veteran's tinea pedis began during service, or is in any way causally or etiologically related to his active service; and,

b)  that the Veteran's unknown skin disease, consisting of small skin lesions, began during service, or is in any way causally or etiologically related to his active service.

In particular, review the lay statements as they relate to the development of his skin disorders and provide information as to how the statements comport with generally accepted medical norms. 

If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.).  If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. 

All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  

The claims folder must be provided to the examiner for review.  The examiner must state in the examination report that the claims folder has been reviewed.

3.  After all of the above actions have been completed and the Veteran has been given adequate time to respond, readjudicate his claim.  

If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto.

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.

The Veteran 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).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs