Citation Nr: 1325988 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 07-24 780A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, other than anxiety disorder, claimed as posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for sarcoidosis. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from December 1986 to May 1987 and from November 1990 to August 1991, with additional service in the Mississippi Army National Guard. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Jackson, Mississippi. In a November 2011decision and remand, the Board accepted a March 2009 substantive appeal as adequate to continue the appeal. The Board noted that a claim for service connection for sarcoidosis was inarticulately stated in the Veteran's claim and in the February 2007 rating decision. When clarified, the claim for service connection for sarcoidosis, previously denied in September 2003, did not require new and material evidence because additional service treatment records had been received since 2003. The claim required de novo review. 38 C.F.R. § 3.156(c) (2010). The Board remanded the claims captioned above for further development. In January 2013, the RO granted service connection for an anxiety disorder. As the Veteran's claim for service connection included PTSD and depression, the Board must consider whether separate service connection is warranted for 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). A review of the Virtual VA and Veterans Benefits Management System paperless claims processing systems do not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for sarcoidosis and COPD 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 does not have an acquired psychiatric disorder other than a service-connected anxiety disorder. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than anxiety disorder including PTSD and depression are not met. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.384 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, an error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In December 2004, the RO provided notice that did not meet the requirements. The notice explained the Veteran's and VA's respective responsibilities to obtain relevant evidence and three of the criteria for service connection but did not explain the method for assigning a rating and effective date. After the initial decision on the claim, the RO provided a notice in March 2006 that informed the Veteran of the method for assigning a rating and effective date should service connection be awarded. The notice was followed by readjudication in rating decisions in June 2006, November 2007, and in supplemental statements of the case in January 2011 and January 2013 with opportunities for the Veteran to respond. Therefore, the initial notice and timing errors were not prejudicial, and the notice requirements have been satisfied. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA and indentified private medical records have been associated with the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran underwent VA examinations in December 2010 and in August 2011. The results have been included in the claims file. The examinations involved summary of the history from a review of the record and from reports by the Veteran, a thorough clinical examination in compliance with regulations and protocols, and in some cases, opinions on the relationship of the disability to active duty service. The Board concludes that the examinations were performed by qualified physicians and a psychologist with appropriate consideration of the history and clinical observations. The Board will address the facts, rationale for the opinion, and compliance with remand instructions below. Therefore, the Board finds that the examinations are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, the Board issued a remand in July 2011. Following a review of the updated claims file and the examination reports, the Board concludes that there has been substantial compliance as it pertains to this claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The RO requested any additional evidence from the Veteran, provided additional and complete notice, obtained VA treatment records, and a VA examination as directed for scheduled examinations attended by the Veteran. Following the examination, the RO issued a supplemental statement of the case in January 2013 with an appropriate opportunity to respond. The Board finds that there has been substantial compliance with the mandates of its remand. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record. The Veteran served as a U.S. Army National Guard heavy vehicle mechanic. He deployed on active duty to Southwest Asia from January 1991 to August 1991. He contends that he experiences PTSD and depressioncaused by traumatic events during overseas service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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 that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The designated chronic diseases include sarcoidosis and psychoses. The definition of psychoses for this purpose does include any of the Veteran's mental health diagnoses of record. See 38 C.F.R. § 3.384 (2012). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's claimed sarcoidosis is a chronic disease, but the acquired psychiatric diagnoses of record are not recognized as chronic diseases. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board may weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson is not competent to diagnose a form of cancer). As reflected in Fed.R.Evid. 701, lay witness testimony is permissible in the form of opinions or inferences when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Acquired Psychiatric Disorder Service connection for acquired psychiatric disorders including PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); in certain circumstances, credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Under DSM-IV, a stressor is a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or event that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others; and (2) the person's response involved intense fear, helplessness, or horror. A stressor must consist of an event during such service that is outside the range of usual human experience and such that would be markedly distressing to almost anyone, such as experiencing an immediate threat to one's life or witnessing another person being seriously injured or killed. It is the distressing event, not mere presence that constitutes a valid stressor. Zarycki v. Brown, 6 Vet. App. 91, 99 (1994). Service in a combat zone is stressful to some degree to all who are there, whatever their duties or experiences. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also VAOPGCPREC 12-99 (Oct. 18, 1999) (cited at 65 Fed. Reg. 6257 (2000)) ("the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C. § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality"). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the Veteran's lay statements alone may establish occurrence of the claimed in-service stressor, in the absence of clear and convincing evidence to the contrary, as long as the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); see Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). For claims that were appealed to the Board but not decided as of July 13, 2010, changes to the applicable regulations are in effect as follows. If a stressor claimed by a Veteran is related to the 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 the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f) (3); 75 Fed. Reg. 39,843 (Jul 13, 2010) "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. If the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. 38 C.F.R. § 4.125(b). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The Veteran served in a supply company located at a port in Saudi Arabia during Operation Desert Storm. In a September 2002 VA outpatient screening, the Veteran denied experiencing any combat related trauma. In statements in April and August 2007, he reported that his location was 50 miles from the combat zone. He and his fellow soldiers were tasked with receiving heavy vehicles, preparing them for use by combat forces, and recovering damaged vehicles after a battle action. He reported that he witnessed dead soldiers in damaged vehicles, was within four to five miles of detonations of incoming missiles, and frequently donned chemical warfare protective equipment under warning of possible attack. The Board concludes that the Veteran's reports of these occurrences are credible because they are consistent with the circumstances of his duty assignment. The Board concludes that the Veteran was not in combat but was in fear of hostile military activity. Service treatment records and VA outpatient treatment records from 1997 to 2004 are silent for any symptoms, diagnoses, or treatment for a mental health disorder. In October 2004, a VA primary care nurse noted a positive screening test for PTSD, and the Veteran began receiving VA outpatient psychotherapy and medication management. The RO received the Veteran's claim for service connection for PTSD the same month. In July 2005, a VA attending psychiatrist noted the history of treatment and the Veteran's reports of irritability, nightmares, and hyperarousal related to "air raids and gas masks." The Veteran reported that he worked seven days a week, 12 hours per day, in part as a coping mechanism for the symptoms. The psychiatrist performed a mental status examination and noted that all criteria for PTSD except an inability to recall the events. The psychiatrist diagnosed PTSD, exacerbated by recent news of events in Southwest Asia. In December 2010, another VA psychiatrist noted a review of the claims file and electronic medical records. He noted the Veteran's experienced incoming missile attacks and his current avoidance of all activities that involve loud noises at work and at recreational events. The psychiatrist noted that the Veteran was diagnosed with PTSD in 2004 and received outpatient treatment until 2007 but none thereafter. The Veteran worked full time, had an active family life, and coached sports teams. The psychiatrist described the symptoms as mild and not associated with the events in service. He diagnosed adjustment disorder, not otherwise specified, and concluded that although some PTSD symptoms were present, the full diagnostic criteria were not met. Rather, the adjustment disorder was associated with life circumstances and not with events in service. In July 2011, the Board in part remanded the claim to obtain an additional medical opinion to resolve the conflict between the two diagnoses and opinions. In August 2011, a VA psychologist noted a review of the claims file and accurately summarized the Veteran's reported experiences in Southwest Asia. The psychologist noted that the Veteran continued to work full time with an active family and recreational life but reported episodes of irritability with co-workers. The psychologist noted that the reported events did meet the criteria for fear of hostile military activity but that the Veteran's symptoms were "subthreshold" and that some but not all the criteria for a diagnosis of PTSD were met. Instead, the psychologist diagnosed anxiety disorder, not otherwise specified, as the sole appropriate diagnosis for all the symptoms and that these symptoms were at least as likely as not due to the reported fear of hostile military attack. In January 2013, the RO granted service connection for an anxiety disorder, effective in October 2004, the entire period of time covered by this appeal. The Board concludes that service connection for a separate acquired psychiatric disorder other than anxiety disorder is not warranted. The Board acknowledges that the medical evidence of record from 2004 to 2007 showed a diagnosis of PTSD but no other disorders. Since 2010, two VA examiners concluded that the Veteran's sole disorder was best diagnosed as an adjustment disorder and as an anxiety disorder. While there are different diagnoses, the great weight of credible and probative evidence is that the Veteran has only one set of symptoms arising from one disorder that has been found to be etiologically related to the fear of hostile attack as he reported experiencing in Southwest Asia. Although different examiners at different times diagnosed the symptoms differently, the Veteran has been granted service connection for those symptoms in effect throughout the appeal period. There is no credible lay or medical evidence that the Veteran experiences more than one service-connected disability, most recently best diagnosed as anxiety disorder and not PTSD or depression. As the preponderance of the evidence is against the claim for service connection for an acquired psychiatrist disorder other than anxiety disorder including PTSD and depression, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a psychiatric disorder other than anxiety disorder, claimed as posttraumatic stress disorder (PTSD) and depression is denied. REMAND Regarding the issues of entitlement to service connection for sarcoidosis and COPD, an additional remand is regrettably necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In July 2011, these claims were remanded so that the Veteran could be provided a VA examination in which an opinion was offered as to whether there was any relationship between the Veteran's current disorders and military service. It was noted that the Veteran had a current diagnosis of each disorder that was documented in VA treatment records dated December 2006 and May 2007. The record reflects that the Veteran was afforded a VA respiratory examination in August 2011. The examiner concluded that the evidence of record did not support continuous symptoms and/or treatment for either sarcoid or COPD during or in the years subsequent to his active duty. However, the Board specifically requested an opinion as to whether it was at least as likely as not that the Veteran's current disorders had their onset during service, or, were in any other way causally related to service. The examiner did not address the second half of the requested opinion. It is not enough to simply conclude that the evidence did not support continuous symptoms and/or treatment during or in the years subsequent to his active duty. Therefore, the Veteran should be scheduled for a new VA respiratory examination. See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). All required tests and studies should be performed, and the examiner should opine as to whether it is at least as likely as not that sarcoidosis and/or COPD manifested during, or as a result of, active military service. The examiner should consider and discuss the Veteran's assertions regarding in-service exposure to dust, smoke and other toxins. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an additional VA examination to ascertain the nature and etiology of his sarcoidosis and COPD. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner shall review all pertinent records associated with the claims file, and offer comments and an opinon addressing whether it is at leasrt as likely as not (i.e., probability of 50 percent or greater), that the Veteran's current disorders had their onset during service or are in any other way causally related to his active service. In reaching the above opinion, the examiner must consider and discuss the Veteran's lay assertions, including his reports of chronic symptomatology AND in-service exposure to dust, smoke and other chemical agents. A complete rationale must be provided for all opinions offered. 2. After completion of the above, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 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). 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). ______________________________________________ B. MULLINS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs