Citation Nr: 1325282 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-36 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a fracture of the left little finger. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from March 3, 1964 to April 17, 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2008 and December 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the Veteran's claim of service connection for schizoid personality disorder and PTSD. This matter also comes before the Board on appeal from a December 2010 rating decision issued by the North Little Rock, Arkansas, RO which denied the Veteran's claim of service connection for a fracture of the left little finger. The United States Court of Appeals for Veterans Claims (Court) has held 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. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has characterized the issue as shown on the first page of this decision. In July 2011, the Veteran testified as to the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The issue of whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a fracture of the left little finger 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 PTSD had its onset in service. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for PTSD, which represents a complete grant of that benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. The Veteran contends in his August 2009 statement that he experienced two personal assault stressors during his service. First, he reported that his drill instructor (DI) in boot camp stomped on his hand and broke it, then reported that another recruit had done it accidentally. Second, he reported that his DI "made me get down and lick up my vomit." The Veteran reported that he responded by attempting suicide twice during service-once by taking pills and then by cutting his wrists with a razor blade. He reported that he also attempted suicide after service by putting a gun against his chest and pulling the trigger. In a January 2010 statement, the Veteran asserted that his diagnosed PTSD was caused by his experiences in service. At his July 2011 videoconference hearing, the Veteran described the two personal assault stressors and in-service suicide attempts consistently with his previous statements. See transcript, pp. 4-5, 8-9, 13. He further testified that he had no psychological symptoms before service. Id., p. 13. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to a veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f); see also 75 Fed. Reg. 39,843 (2010). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence' "in personal-assault cases). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board finds that the evidence supports an award of service connection for PTSD. First, there is medical evidence from three VA clinicians diagnosing the Veteran with PTSD. In July 2009, a VA clinician diagnosed him with chronic service-related PTSD. In August 2009, a VA psychiatrist diagnosed him with PTSD with depression. In October 2009, a VA physician examiner in the mental health service diagnosed the Veteran with PTSD. Second, there is a link, established by medical evidence, between current symptoms and an in-service stressor. Specifically, the Veteran reported the same incidents to the October 2009 VA examiner as he had in his aforementioned statements to VA, and the examiner opined that: [The Veteran] does describe a history of personal trauma during basic training in [service] that is sufficient to lead to PTSD, and a symptom pattern indicative of PTSD as a direct result of and caused by posttraumatic experiences.... The patient served...but was administratively discharged, apparently due to very poor performance in basic training as well as his suicide attempts. The patient states that he was routinely humiliated and physically assaulted by his drill instructor, including [one] episode where his hand was broken after the drill instructor stepped on his hand. The patient states that he was so frightened that he was indeed in fear of his life, and indeed had the suicide attempts so that he would not have to return to that level of abuse. These are the types of assaults on his physical integrity, and causing the patient to have fear of his own life, that certainly are sufficient to lead to PTSD, and the patient's symptoms of PTSD are a direct result of and caused by his experiences of extreme fear, horror and helplessness. Third, there is credible supporting evidence that the claimed in-service stressor occurred. As an initial matter, the Board has considered that the Veteran reported, and the March 1964 enlistment examiner noted, a left hand fracture with limitation of motion of the left index finger resulting from a pre-service automobile accident in June 1961. A clinician noted that x-rays taken within one week of enlistment revealed old fractures (fx) of the distal interphalangeal (IP) joint of the left thumb and index finger. Later in March 1964, a clinician recorded that the Veteran's little finger was stepped on two days ago by another recruit and that he had been unable to extend that finger prior to the injury. In April 1964, an in-service clinician took a new x-ray of the Veteran's left hand and found a fracture at the distal portion of the 1st phalanx of the 5th (little finger) digit, as well as some callus formation in that area. Later in April 1964, a clinician recorded that the Veteran was complaining of pain in his left hand, was "crying [and] carrying on," and "states he can't stand it." Still later in April 1964, including in a Report of Medical Examination, in-service clinicians diagnosed him with schizoid personality. An April 1964 report from an Aptitude Board found that the Veteran had cut his wrists in response to "the yelling of the drill instructors." The Aptitude Board also cited the Veteran's pre-service history of permanent expulsion from school in the ninth grade due to disobedience; suspensions from school of fighting and disobedience; and two civilian arrests, for drinking and for driving without a license. After careful consideration, the Board finds that the most probative evidence suggests that the claimed in-service stressors occurred. First, the Veteran voluntarily disclosed his history of a pre-service automobile accident injury to his left hand at his entrance examination and medical history report; this immediate disclosure is inconsistent with an attempt to falsely portray an injury as having occurred in service. Furthermore, the findings noted at the Veteran's enlistment examination referenced injuries to the Veteran's left hand and index finger-not his little finger. Finally, the in-service report of "crying [and] carrying on," diagnosis of schizoid personality, and, most significantly, the Aptitude Board report of the Veteran cutting his wrists in service all strongly suggest that he was indeed traumatized by his experiences in service. The multiple diagnoses by VA clinicians of PTSD, and the positive nexus opinion from the October 2009 VA examiner, further substantiate the conclusion that the Veteran's reported in-service traumas are consistent with the types of stressors which would lead to his current diagnosis. In this regard, the Federal Circuit has observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal assault stressor, noting that "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal assault cases). The October 2009 VA examiner's report is especially probative in corroborating the Veteran's stressors in this case because she issued an addendum confirming her conclusions after reviewing the Veteran's claims file. By contrast, the finding of the Aptitude Board that the Veteran had cut his wrists in response to "the yelling of the drill instructors," without a more significant stressor such as those to which the Veteran has testified, appears facially implausible. The Board also notes that none of the pre-service offenses that the Aptitude Board listed suggest dishonesty or deception. Finally, the Board finds that the Veteran's statements to VA clinicians for the purpose of treatment-e.g., in June 2009 and July 2009-have been wholly consistent with his testimony and statements to the RO and the Board. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Consequently, the Board finds that the Veteran's statements and testimony are credible, and the most probative evidence suggests that the claimed in-service stressors occurred. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (holding that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). In light of the foregoing, the Board finds that the Veteran has a current diagnosis of PTSD that resulted from the claimed stressor events of two personal assaults in service-namely having his left hand stepped on and being forced to eat his own vomit. The evidence, including the Veteran's statements of record and his testimony at the July 2011 Board hearing, as well as the contemporaneous evidence of an in-service suicide attempt and x-ray findings of a fractured left little finger, credibly establish the occurrence of the stressor events. As such, the nexus opinion provided by the October 2009 VA examiner linking the Veteran's PTSD to his service was based on credible facts. Furthermore, no negative nexus opinions are of record. On that basis, the Board finds that the criteria for service connection for PTSD are met, such that a grant of service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND In a September 2007 rating decision, the RO denied service connection for a fracture of the left little finger; the Veteran did not appeal that decision. In August 2010, the Veteran requested to reopen the claim; the RO confirmed and continued its earlier decision in a December 2010 rating decision. The Veteran filed a timely notice of disagreement in January 2011. Where, as here, there has been an initial Agency of Original Jurisdiction (AOJ) adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is needed. Manlincon v. West, 12 Vet. App. 238 (1999). This issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Provide the Veteran with a statement of the case regarding the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a fracture of the left little finger. Please advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs