Citation Nr: 1325003 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-27 667A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. 3. Entitlement to service connection for a left shoulder disorder. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for a sleep disorder, to include as secondary to PTSD. 6. Entitlement to service connection for residuals of a left great toe fracture. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to July 1983 and again from March 2003 to July 2005. The Veteran also served in the Georgia National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a November 2012 videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of that hearing is of record and associated with the Virtual VA. With respect to the Veteran's service connection claim for PTSD, the Board acknowledges 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition to a diagnosis of PTSD, the record notes that the Veteran has also been diagnosed with a major depressive disorder. Thus, although the Veteran's psychiatric claim was originally adjudicated only with respect to PTSD, under Clemons it can be broadened to include a claim for any acquired psychiatric disorder. As such the Veteran's claim has been recharacterized on the title page of this decision. The issues of service connection for an acquired psychiatric disorder, other than PTSD, left shoulder disorder, hypertension, sleep disorder, and residuals of a left great toe fracture 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. FINDING OF FACT The Veteran has been diagnosed with PTSD by a VA psychiatrist based on in-service stressors which appear credible and consistent with the circumstances of his service in Iraq. 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) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. Service Connection-PTSD The Veteran asserts that he has PTSD as a result of his service in Iraq. 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; 1131. 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)). In addition to the laws and regulations outlines above, 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) (2012). 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, 2008. 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. Because the Veteran's claim was pending before the Board on July 13, 2010, but had not yet been decided at that juncture, the amended provisions of 38 C.F.R. § 3.304(f) are for consideration in this case. This 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). The Veteran maintains that he warrants service connection for PTSD based upon his experiences while serving in Iraq. Specifically, he states that he was directly exposed to combat and lived in constant fear during mortar attacks. He relates that on his way to obtain equipment, the gate of the base was bombed and he and other soldiers had to barricade themselves to protect themselves. The Veteran's DD Form-214 shows that his Military Occupational Specialty was a crane operator and a truck vehicle repairman. His DD Form-214 additionally reflects that he served in an imminent danger pay area. A September 2011 statement from a VA staff psychiatrist indicated that the Veteran was a patient in the Trauma Recovery Program being treated for PTSD and a major depressive disorder related to combat trauma while serving in Iraq in 2003 to 2004. The statement indicated that he was currently being treated with a combination of psychotherapy and medication management for his condition. Also of record is a January 2011 statement from a VA staff psychologist reflecting that the Veteran had served in Iraq and was currently being treated for PTSD. It noted that the Veteran's duties included guard duty, serving as a crane operator, and a truck driver. The Veteran's reports of encountering mines and/or booby traps, receiving hostile incoming fire, being attacked by terrorists or civilians and various other combat experiences were noted. The VA staff psychologist diagnosed the Veteran with PTSD secondary to his service in Iraq. There are no contradictory opinion(s) of record. While the Veteran claims to have been involved in combat, this has not been confirmed by his service personnel records. The Board notes that the Veteran was not awarded the Combat Infantryman Badge, Purple Heart Medal, or any other award typically associated with valor or heroism shown while engaged in combat with an enemy force. In light of these findings, there is no evidence confirming his involvement in combat while serving in Iraq. Nevertheless, his stressors of coming under enemy attack appear to fall within the purview of this new version of subpart (f)(3). Since his service personnel records show that he was stationed in Iraq and Kuwait from June 2003 to June 2004, and that he served in an imminent danger pay area, his claimed stressors are consistent with the circumstances and conditions of his service. See 38 C.F.R. § 3.304(f)(3). Moreover, because a VA psychologist and a VA psychiatrist have concluded that the Veteran has PTSD based on these in-service stressors, the Board will accept the Veteran's lay statements without corroborating evidence. See 38 C.F.R. § 3.304(f)(3). In conclusion, evidence supports a finding that the Veteran suffers from PTSD as a result of stressors he experienced while on active duty. Service connection for PTSD is therefore warranted. ORDER Service connection for PTSD is granted. REMAND Additional development is necessary prior to final adjudication in this case. Acquired Psychiatric Disorder (Other than PTSD)- At the outset, the Board notes that although the Veteran's claim for PTSD has been granted, the issue of an acquired psychiatric disorder, to include major depressive disorder has not been adjudicated. It is noted in the record that the Veteran is being treated for PTSD and major depressive disorder by VA. Based on this additional psychiatric diagnosis, the Board finds that an additional medical examination is required in order to reconcile the various diagnoses of record, as well as to address whether such conditions other than PTSD are related to service. See Clemons v. Shinseki. Sleep Disorder- The Veteran claims service connection for a sleep disorder, to include as secondary to a psychiatric disorder. During the pendency of the appeal, the Veteran was awarded service-connection for PTSD. On remand, the RO should develop the issue of secondary service connection. Left Great Toe Fracture- The Veteran claims that he had a left toe fracture in service that continues to this date. The Veteran's service treatment records show that the Veteran claimed he sustained injury to that toe in 2003 while in Iraq and that the residuals of that injury remain. The evidence of record variously shows a questionable fracture of the distal phalanx of the great toe, a deformity of the great toe bunion, and also gout of the left great toe. Any of these disorders can be service-connected if determined to be as a result of service. Based on documentation of complaints toe problems in service and current treatment for a left great toe disorder, the Board finds that a remand of the claim of service connection for a left great toe fracture is necessary. 38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Left Shoulder Disorder and Hypertension- The Veteran also claims service connection for left shoulder rotator cuff disorder and hypertension. An April 2007 VA examination indicated that there was no left shoulder disorder. However, in service, he had left and right shoulder complaints, and since service, he has had surgery of the rotator cuff for both shoulders. He claims that his left shoulder rotator cuff disorder has continued since service when he was carrying heavy weapons on his shoulders. Based on documentation of complaints left shoulder problems in service and current treatment for a left shoulder disorder, the Board finds that a remand of the claim of service connection for a left shoulder disorder is necessary. 38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson. Although the record shows that hypertension occurred in between the Veteran's two periods of service, the issue of whether his hypertension was aggravated during his second period of service has not been fully addressed. The Board finds this is a medical question outside of its jurisdiction. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions. Finally, the Veteran has also indicated that he has been seen by VA for all of his claimed disorders since 2005. Those records are not associated with the claims folder. 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 RO/AMC should obtain and associate with the claims file all outstanding VA records for all of the claimed disorders on appeal. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a claim for secondary service connection for a sleep disorder. 2. Contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his acquired psychiatric disorder, left shoulder disorder, hypertension, sleep disorder and left great toe. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. Regardless of whether or not the Veteran responds, obtain all VA outpatient treatment records from 2005 to the present for all of the claimed disorders. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. The Veteran should be afforded a VA mental disorders examination to determine the nature and etiology of his claimed acquired psychiatric disorder. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner (a VA psychologist or psychiatrist) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. If an acquired psychiatric disability other than PTSD is diagnosed (e.g., major depressive disorder), the examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the psychiatric disorder had its onset in service or is otherwise causally related to the Veteran's service. If a sleep disorder is diagnosed, the examiner is also requested to opine whether it is at least as likely as not (50 percent probability or greater) that the sleep disorder had its onset in service or is otherwise causally related to the Veteran's service, to include as due to or aggravated by the Veteran's service-connected PTSD. 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 aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the disorder (i.e., a baseline) before the onset of the aggravation. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 4. The Veteran should be afforded a VA orthopedic examination to determine the nature and etiology of his claimed left foot great toe disorder and his left shoulder rotator cuff disorder. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the left foot great toe disorder (great toe fracture, great toe bunion, and/or great toe gout) had its onset in-service or is otherwise causally related to the Veteran's service. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that a left shoulder disorder had its onset in-service or is otherwise causally related to the Veteran's service. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 5. The Veteran should be afforded a VA examination to determine the nature and etiology of his claimed hypertension. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's preexisting hypertension was aggravated (i.e., underwent an increase in severity) as a result of active service. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 6. When the above development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of all of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). ______________________________________________ A. M. CLARK Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs