Citation Nr: 1326250 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-27 586A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability to include post-traumatic stress disorder (PTSD), depression, and bereavement disorder. 2. Entitlement to service connection for vascular dementia. ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from July 1968 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Des Moines, Iowa, regional office (RO) of the Department of Veterans Affairs (VA). The Veteran's representative withdrew from representing him in an August 2012 statement. The Veteran was contacted by the Board in a February 2013 letter and notified that he had the right to appoint a new representative, but that if he did not reply within 30 days it would be assumed that he wished to represent himself. The Veteran did not reply and the Board will proceed with adjudication of this appeal. Similarly, the record indicates that the Veteran requested a videoconference hearing in his July 2010 substantive appeal and again in a separate statement. He was never scheduled for such a hearing. The Veteran was contacted by the Board in a May 2013 letter and asked if he continued to desire a hearing. He was told that if he did not reply within 30 days, the Board would assume he did not want a hearing and proceed accordingly. The Veteran did not reply. Therefore, the Board will proceed with adjudication of his claims. The issue that was certified on appeal to the Board is service connection for PTSD. However, the Veteran has diagnoses of PTSD as well as other acquired psychiatric disorders, to specifically include dysthymia or depression, a bereavement disorder, and dementia. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not considered by the RO. The issue of entitlement to service connection for dementia is remanded to the RO via the Appeals Management Center (AMC). The Veteran will be advised if further action is required on his part. FINDINGS OF FACT 1. The Veteran served in Vietnam, where he was exposed to incidents that involved fear of hostile military action and which are linked by medical opinion to a current diagnosis of PTSD. 2. The Veteran also has current diagnoses of depression, dysthymia, and bereavement disorder related to his loss of a friend in Vietnam. CONCLUSION OF LAW The Veteran's post-traumatic stress disorder, depression, and bereavement disorder were incurred due to active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303(a), 3.304(f), 3.306(d) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The Board finds that the duty to notify and duty to assist the Veteran has been met in this case. Furthermore, given the favorable nature of this decision, no further notice or assistance is required to aid the Veteran in substantiating his claim. The Veteran contends that he developed PTSD as a result of experiences in Vietnam. He reports that a close friend was killed while on patrol and that he almost accompanied his friend on this patrol. The Veteran states that he has thought of this incident ever since it occurred. In addition, he notes that although he was a cook, he was exposed to fire fights and mortar shelling during enemy attacks on the base where he was stationed. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). PTSD is not one of the disabilities listed in 38 C.F.R. § 3.309. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 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 posttraumatic stress disorder 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. § 3.303(f)(3)). For purposes of 38 C.F.R. § 3.303(f)(3), "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. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veterans' personnel records confirm that he served in Vietnam. His military occupational specialty was a cook. He does not have any awards or decorations that would support a finding that he participated in combat. However, the reports of incoming fire and the death of a friend are consistent with the circumstances of service in Vietnam and fall within the definition of "hostile military or terrorist activity." The August 2011 VA examiner determined that the Veteran was exposed to events in Vietnam that were sufficient to support a diagnosis of PTSD, as did the author of an October 2000 VA psychiatric note. The current provisions of 38 C.F.R. § 3.303(f)(3) were considered by the August 2011 examiner in reaching this determination. A June 2011 VA psychologist did not agree that the Veteran's Vietnam experiences constituted a stressor, but there is no indication that this examiner considered 38 C.F.R. § 3.303(f)(3). The Board concludes that the weight of the competent medical evidence shows that the Veteran was exposed to stressor events during service in Vietnam that are sufficient to support a diagnosis of PTSD. As the Veteran was exposed to stressors sufficient to support a diagnosis of PTSD during service, the question becomes one of whether or not he currently has a diagnosis of PTSD that are related to these stressors. The Board will turn to the medical evidence in order to determine whether or not the Veteran has such a diagnosis. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F.3d 1328 (1997). The evidence that weighs against the Veteran's claim includes VA treatment records dated June 2011. These records stated that the Veteran did not have a diagnosis of PTSD. However, this was based on the finding that the death of his friend in Vietnam did not qualify as a stressor. The findings of the August 2011 VA PTSD examination also weigh against the Veteran's claim. The examiner reviewed the Veteran's claims folder. As reported, the examiner noted the Veteran's claimed stressors, which included the death of his friend and exposure to enemy fire while on his base, and determined that these experiences were sufficient stressors to support a diagnosis of PTSD. However, the examiner determined that the Veteran did not have a current diagnosis of PTSD. The explanation for this determination was that the Veteran did not endorse enough symptoms based on persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. In contrast, the evidence contains VA treatment records showing treatment of the Veteran's psychiatric disabilities from 2000 to 2012. These include an October 2000 psychiatric note. The Veteran said that he did not like being around people of other races because it reminded him of Vietnam. At the conclusion of the examination, the impression was that the Veteran met the criteria for a diagnosis of PTSD. The examiner added that the Veteran experienced qualifying events during the Vietnam War that involved intense fear and helplessness, and that he was reliving these events. The examiner specifically noted that the Veteran had persistent avoidance of stimuli associated with his traumas, as indicated by efforts to avoid people that reminded him of those traumas. This report was cosigned by a VA staff psychiatrist. Additional VA treatment records dating from October 2000 show that the Veteran received ongoing treatment for psychiatric disabilities that included PTSD. PTSD was included among the diagnoses made by VA psychiatrists in November 2002, September 2003, and August 2004. Although additional VA treatment records through 2012 often include PTSD by history only, VA treatment records dating January 2011, March 2011, and June 2012 include diagnoses of PTSD. Prior to making the diagnosis, the June 2012 records include a description of the death of the Veteran's friend in Vietnam, and notes that he was allowed to accompany the remains back to that soldier's hometown. The Board notes that these opinions are at least equal in weight, in that both were obtained from VA psychiatrists or psychologists who made their diagnoses after an interview with the Veteran and a review of his medical history. Therefore, when all reasonable doubt is resolved in favor of the Veteran, the Board finds that he currently has a diagnosis of PTSD, and that this disability is the result of his experiences in Vietnam. Now, the Board must turn to the question of whether or not the Veteran's other psychiatric disabilities are the result of active service. A review of the record shows that these diagnoses include a major depressive disorder or dysthymia, and a bereavement disorder. The August 2011 VA examiner states that the Veteran has a long term problem with depression, but did not report any history of treatment of depression prior to 1980 and did not have any mental health treatment during active duty. Therefore, his dysthymia was considered less likely than not to be related to military service. In contrast, the same June 2011 VA examiner who opined that the death of the Veteran's friend in service did not qualify as a traumatic event for the purposes of PTSD further opined that the Veteran's symptoms regarding his friend in Vietnam were commensurate with bereavement or depression, and the diagnoses included a depressive disorder not otherwise specified and bereavement. The Board finds that the June 2011 VA opinion is of greater probative value than the August 2011 VA opinion. While the August 2011 examiner reviewed the Veteran's service treatment records, his opinion appears to be based entirely on the absence of mental health treatment during service or until 1980. However, service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.306(d). In this case, there is competent medical opinion that demonstrates the Veteran's depression, dysthymia and bereavement disorder are at least partially related to his experiences in service. Therefore, when all reasonable doubt is resolved in favor of the Veteran, the Board finds that service connection for a depressive disorder and bereavement disorder is also warranted. ORDER Entitlement to service connection for an acquired psychiatric disability, diagnosed as PTSD, depression, and bereavement disorder is granted. REMAND The records include the report of a January 2008 VA neuropsychology consultation. Testing administered at a January 2008 VA neuropsychology consultation resulted in an impression of mildly abnormal results, and his cognitive difficulties were felt to be consistent with dementia, likely vascular in nature. Vascular dementia is rated as a mental disorder and is subject to the same provisions as PTSD and depression. 38 C.F.R. § 4.130, Code 9305 (2012). Therefore, it is encompassed in his current claim, and VA must determine whether or not it is related to service or to a service connected disability. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The August 2011 VA examination also contains a diagnosis of vascular dementia. The examiner opined that this less likely than not related to service, but did not provide a rationale. Once VA undertakes to provide an examination, it must insure that it is adequate, or explain why an adequate examination cannot be provided. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine whether the Veteran's current dementia is related to a disease or injury in service. The claims folder must be provided to the examiner for use in the study of this decision. The examiner should indicate that the claims folder and all electronic records have been reviewed. All indicated tests and studies should be conducted. After the record review and examination is completed, the examiner should provide the following opinions: Is the currently diagnosed dementia the result of a disease or injury in service (including the now service connected psychiatric disabilities)? Is the currently diagnosed dementia aggravated by the now service connected psychiatric disabilities? If so, is there medical evidence created prior to the aggravation or between the time of aggravation and the current level of disability that shows aggravation? The reasons for all opinions should be provided. If the examiner is unable to offer any portion of the requested opinions without resort to speculation, the reasons and bases for that opinion should be provided, and any outstanding evidence that would allow the opinion to be provided should be identified. 2. If any benefit sought on appeal, remains denied, issue a supplemental statement of the case and return the case to the Board, if otherwise in order. 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs