Citation Nr: 1326560 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-38 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia 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. REPRESENTATION Veteran represented by: Kendal Partlow, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before a Decision Review Officer (DRO) at the RO in December 2010. A transcript of the hearing is associated with the claims file. In the Veteran's September 2009 substantive appeal (VA Form 9), he indicated that he wished to testify at a Board hearing before a Veterans Law Judge sitting at the RO. However, in a September 2011 communication, the Veteran withdrew his request for a Board hearing. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. In a March 2013 statement, the Veteran claimed entitlement to service connection for hearing loss and tinnitus, but such issues have not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the VA RO. FINDING OF FACT Resolving all doubt in his favor, the Veteran has a current diagnosis of PTSD as a result of his in-service stressors related to his fear of hostile military activity coincident with his service in Korea in the demilitarized zone (DMZ). CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant the Veteran's claim for service connection for PTSD is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. 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)]. 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, the United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, while psychoses are recognized under VA regulations as chronic diseases, the clinical record in this case does not indicate that the Veteran's psychiatric problems encompass a psychosis. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). 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). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, 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, is required. See 38 C.F.R. § 3.304(f). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the Veteran "engaged in combat with the enemy." See 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(d). If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the Veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. See 38 C.F.R. § 3.304(f). Prior to July 13, 2010, VA had generally required that, where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, effective July 13, 2010, VA has amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads 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, 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. For purposes of this paragraph, "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. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010, as is the case here. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41 ,092 (July 15, 2010). [While the RO did not provide the Veteran with notice of this amendment or consider it in the adjudication of this claim, this does not result in prejudice to the Veteran given the favorable resolution of the claim herein. Bernard v. Brown, 4 Vet. App. 384, 393 (1993).] Once the claimed stressor has been verified, the Veteran's personal exposure to the event may be implied by the evidence of record. A Veteran need not substantiate his actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. With the above criteria in mind, the relevant facts will be summarized. The service treatment reports, to include the reports from the November 1967 separation examination and medical history collected at that time, do not reflect psychiatric symptoms or treatment. The service personnel records document service in Korea from May 1966 to June 1967, with duties therein listed as an Assistant Gunner, Squad Leader, and Gunman while assigned to Co. C, 1st Bn., 23 Inf. of the 2d Division. In January 2007, the Veteran filed a claim for entitlement to service connection for a psychiatric disorder, at which time he asserted that he suffers from PTSD as a result of his service in the DMZ in Korea. The first clinical evidence of treatment for a psychiatric disability is contained in VA outpatient treatment reports dated in 2004, with a positive PTSD "screen" in October 2004. Reports from a visit to a VA mental hygiene clinic in November 2004, at which time the Veteran reported incidents during his service in the DMZ in Korea in which he felt his life was in danger, resulted in diagnoses of depression NOS (not otherwise specified) and anxiety, NOS. A report telefaxed by a private licensed social worker in November 2005 reflects the Veteran reported that his daily duties in the DMZ included patrols guarding the ambush perimeter. He described a specific incident in which nine men were killed by North Korean soldiers after he had immediately left the area. The Veteran told the social worker that memories of his military service "placed him in a state of anxiety from which he has never recovered." The diagnoses rendered on this report included severe recurrent major depression without psychotic features, generalized anxiety disorder, and "Rule Out PTSD (military related incid[]ents)." With respect to the incident related by the Veteran of serving on patrol in an area in which 9 service members were killed shortly after the Veteran left that area, articles have been submitted documenting this attack, indicating that on November 2, 1966, [a date that coincided with the Veteran's documented service in Korea], North Korean soldiers ambushed an eight man patrol of the 1st Bn, 23rd Inf., killing 7 of its members and seriously injuring the other. In addition, these articles indicate that on May 21, 1967 [a date that also coincided with the Veteran's documented service in Korea], a North Korean military unit infiltrated the American patrolled area of the DMZ and destroyed the barracks at "Camp Walley," where the 1st platoon of the 1st Bn, 23rd Inf. was stationed. The bombing was said to have killed two soldiers and wounded 17 others. [In his stressor statement received in September 2009, the Veteran also referred to this bombing at Camp Walley]. These articles indicated that between 1966 and 1969, North Korean attacks along the DMZ killed 44 Americans and wounded 111. In addition to the articles set forth above, further corroboration of the Veteran's stressor statements is represented by a statement received in September 2009 by B.J.M., who indicated the he served in the DMZ with "Charlie Company" of the "First and twenty-third, 2d infantry division" [the same unit as the Veteran]. He indicated that his duties in the DMZ included "hunter killer patrols," stakeouts, and guard duty in which their mission was to serve as an early warning system in the case of a North Korean invasion. In the event of such an attack, this would become a "suicide mission" according to this service member, as the battle plan in the case of such an attack was to destroy all the bridges along the Imjin River, which would have resulted in his unit being "stranded" and sacrificed to the enemy. He reported that thoughts of such a possibility "laid heavy on our minds." Also said to preoccupy this individual were thoughts about the fact the North Koreans had blown up the entire barracks of "A company" and the ambush on the 9 man patrol from "Bravo Company," or the two incidents involving the 1st Bn, 23rd Inf. discussed in the articles referenced above. This individual also referred to stress associated with constant fear of detonating lands mines, particularly because their company commander was the victim of a land mine explosion. In his September 2009 stressor statement, the Veteran specifically indentified B.J.M. by name, indicating that, like him, he would sometimes worry while on patrol about the possibility of being trapped due to the bridges being blown up in the event of an invasion by North Korea. He also reported in this statement, as did B.J.M, that his company commander was the victim of a land mine explosion. Another statement supporting the Veteran, dated in March 2009, was submitted by an individual who indicated that he served as the Veteran's squad leader. He repeated the discussion about the incident in which his company commander was injured in a land mine explosion and, corroborating the assertion of the Veteran, indicated the they had been on "stake-out" near the location of the attack that killed an entire squad with the exception of one survivor. He described a "very tense and stressful tour of duty" that included frequent "hit-and-run" situations; firing and throwing grenades; continuous harassment; and the capture and killing of infiltrators [in this regard, photocopies of photographs from the Veteran's Korean service submitted in September 2009 include one of a dead, apparently enemy, soldier]. This individual noted that the base was surrounded by mine fields and that the "alert" was such that they had to keep their weapons, ammunition, and armored vests with them at all times. The Veteran's awards and decorations as listed on his DD Form 214 are not indicative of exposure to combat, and there is otherwise no official service department verification of exposure to combat. However, the Veteran is in receipt of the "Imjin Scout" Certificate indicative of service in the DMZ in Korea and official service department reports document the type of duties while he served in Korea (assistant Gunner, Squad Leader, and Gunman) that would be consistent with the stressful events in the DMZ described by him. There is also, as set forth above, at least general corroboration by supporting statements from service members and articles about the nature of the duty in the DMZ when the Veteran served there. Finally, in October 2010, a VA psychologist, who otherwise found at that time that the criteria for a diagnosis of PTSD were not met, concluded that the DSM-IV stressor criterion had been met based on "[c]ombat stress while stationed in the DMZ." Given the above, the Veteran has presented stressors related to fear of hostile military activity during his documented DMZ duty and a VA psychologist has found that these stressors are adequate to support a diagnosis of PTSD. Thus, as the claimed stressors are consistent with the places, types, and circumstances of the Veteran's service, there has been some, at least general, corroboration of these stressors, and there is no clear and convincing evidence that none of the stressors occurred, the Board will concede for the purposes of the analysis below that the Veteran was exposed to a stressor in service adequate to support a diagnosis of PTSD. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010) as codified at 38 C.F.R. § 3.304(f)(3) (2012). In addition, to the extent the Veteran's "actual presence" at a stressful event may not be established by official service department records, the fact that the Veteran was assigned to and stationed with a unit that was present in the DMZ while stressful events are documented to have occurred is sufficient to find that the Veteran was exposed to a stressor in this case. See Pentecost, Suozzi, supra. While the Board finds that the record establishes the occurrence of a stressor sufficient to produce PTSD, the record is in conflict as to whether a diagnosis of PTSD has been established as set forth at 38 C.F.R. § 3.304(f). In this regard, and as mentioned above, the VA examination completed by a psychologist in October 2010, conducted for the purpose of determining the validity of a PTSD diagnosis, found that the criteria for a diagnosis of PTSD were not met. [The Veteran and his attorney, to include in detailed written argument and testimony presented at a December 2010 hearing at the RO before a hearing officer, have offered detailed criticisms for the manner in which this examination was conducted]. Private psychologists in March 2009, December 2010, and October 2011 have rendered opinions that the Veteran does meet the criteria for PTSD based on his DMZ stressors. The October 2010 VA examination and the evaluations conducted by the private psychologists are equally probative in that all of the examiners are medically qualified to offer an opinion regarding the presence of PTSD, have examined the Veteran, and considered his in-service stressors consistent with his service in the Korean DMZ. Therefore, the Board finds that the evidence as to whether the Veteran has a current diagnosis of PTSD based on his acknowledged in-service stressor is in relative equipoise. Consequently, the Board resolves all reasonable doubt in favor of the Veteran and finds that he as a current diagnosis of PTSD as a result of his in-service stressors related to his fear of hostile military activity coincident with his service in Korea in the DMZ. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Accordingly, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for service connection for an acquired psychiatric disorder other than PTSD so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As noted in the foregoing decision, the Veteran has diagnoses of acquired psychiatric disorders other than PTSD. In this regard, the record reveals diagnoses of anxiety disorder NOS, major depressive disorder, mood disorder NOS, and alcohol dependence. For the reasons detailed below, the Board finds that additional development is warranted with respect to such diagnoses. As an initial matter, the Board finds that a remand is necessary in order to obtain outstanding treatment records. In this regard, the record reflects that the Veteran has sought psychiatric treatment at the Henlawson Vet Center in West Virginia, the Logan and Huntington, West Virginia, VA medical facilities, and from B. Mosely of Boone County, West Virginia. Therefore, on remand, the Veteran should be requested to identify any VA or non-VA healthcare provider who treated him for his acquired psychiatric disorder other than PTSD. Thereafter, all identified treatment records, to include those from the Henlawson Vet Center, the Logan and Huntington VA facilities dated from May 2009 to the present, and B. Mosely, should be obtained for consideration in his appeal. Additionally, the Board finds that a remand is necessary in order to afford the Veteran another VA examination so as to determine the etiology of his acquired psychiatric disorders other than PTSD. In this regard, while the record reflects diagnoses of anxiety disorder NOS, major depressive disorder, and mood disorder NOS, there is no opinion regarding whether such diagnoses are related to the Veteran's military service, to include his service in the Korean DMZ. Furthermore, as service connection for PTSD has been granted herein, the examiner should be requested to render an opinion as to whether the Veteran's other acquired psychiatric disorders are caused or aggravated by his PTSD. In this regard, the Board notes that, with respect to the Veteran's diagnosis of alcohol dependence, for claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. However, the law does not preclude a Veteran from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. Allen v. Principi, 237 F.3d 1368 Fed. Cir. 2001). Additionally, the Veteran should be provided proper VCAA notice regarding the secondary aspect of his claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD as secondary to PTSD. 2. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for his acquired psychiatric disorder other than PTSD. After securing any necessary authorization from him, obtain all identified treatment records, to include those from Henlawson Vet Center, the Logan and Huntington VA facilities dated from May 2009 to the present, and B. Mosely. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder other than PTSD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. The examiner should reconcile any diagnoses that conflict with the evidence of record showing diagnoses of anxiety disorder NOS, major depressive disorder, mood disorder NOS, and alcohol dependence. For each currently diagnosed disorder other than alcohol dependence, the examiner should offer an opinion as to whether it is at least as likely as not that such disorder is related to the Veteran's military service, to include his service in the Korean DMZ. The examiner should also offer an opinion as to whether each currently diagnosed disorder, to include alcohol dependence, is caused or aggravated by the Veteran's PTSD. If the examiner determines that a there has been aggravation as a result of PTSD, the examiner should report the baseline level of severity of the other acquired psychiatric disorder(s) prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed acquired psychiatric disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs