Citation Nr: 1326925	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  09-19 417	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for a psychiatric disability.  

2.  Entitlement to service connection for a back disability.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel

INTRODUCTION

The Veteran served on active duty from August 1960 to May 1964.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2008 and June 2010 rating decisions of the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in May 2011.  A transcript of that hearing has been associated with the claims file.  

In September 2011, the Board remanded the issues of service connection for a psychiatric disability and back disability for additional development.  

A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal.  These records include VA medical records.  A supplemental statement of the case (SSOC) was issued in November 2012, which addressed this additional evidence.

The issue of service connection for cardiovascular disease as secondary to a psychiatric disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issue of service connection for a back disability 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

Affording the Veteran the benefit of the doubt, the probative evidence of record demonstrates that a psychiatric disability, including an obsessive compulsive disorder, is related to his active service.  


CONCLUSION OF LAW

The criteria for the establishment of service connection for a psychiatric disability, including an obsessive compulsive disorder, have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012).  The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim.  See generally VCAA.  

In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision.  

Pertinent Laws and Regulations

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In addition, service connection may 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).

In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection will also be presumed for certain chronic diseases, including psychoses, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R §§ 3.307, 3.309.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. § 1113.

The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012).  See Baldwin v. West, 13 Vet. App. 1 (1999).  When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).  If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable.  Ortiz, 274 F.3d at 1365.

With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations.  See Powell v. West, 13 Vet. App. 31, 35 (1999).

Analysis

In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that his current psychiatric disorder is related to his active service.  Specifically, he contends that he was involved in a bus accident while stationed at Kunsan Air Base in Korea in July 1961.  

While the Veteran's service treatment records do not reflect any treatment for injuries from a bus accident or a psychiatric disability, his service personnel records reflect he served at the Kunsan Air Base from January 1961 and indicate he served there through 1961 and possibly into 1962.  In addition, the Veteran submitted evidence of an inspection report from the Kunsan Air Base which included inspection of the Vehicle Operation Section from November 1959 to June 1961.  Finally, the Veteran also submitted a photograph of a U.S. Air Force bus dated in June 1961 and labeled as having been taken in Korea.  Therefore, the Board finds that this evidence supports the Veteran's report of involvement in a bus accident while stationed at Kunsan Air Base in Korea in July 1961 and this incident is conceded.  

The post-service medical evidence, including private medical records from June 1990 and from July 2006 to September 2011 and VA medical records from February 2008 to January 2013, reflect that the Veteran was initially treated for a psychiatric disability in December 2009, diagnosed as obsessive compulsive disorder, generalized anxiety disorder and depressive disorder, not otherwise specified (NOS).  Thereafter, he continued to be treated at VA for his psychiatric disability, diagnosed as obsessive compulsive disorder, generalized anxiety disorder, adjustment disorder with mixed anxiety and depressed mood, rule out posttraumatic stress disorder (PTSD), obsessive compulsive disorder by history and generalized anxiety disorder by history.  

In December 2009 VA outpatient treatment report, the Veteran was diagnosed with obsessive compulsive disorder, generalized anxiety disorder and depressive disorder, NOS.  He reported a military history of enlistment in the U.S. Air Force at the age of 18 and deployment to Korea for 13 months.  The Veteran reported his most traumatic event occurred in June (year unspecified) while he was stationed in Korea, wherein a bus he was on tipped over into a rice paddy.  He reported that he thought he might die and that others thought so as well.  He stated he was pulled out of the bus window by another airman.  The rice paddy, he described, was filled with human feces and he and others had suffered cuts and had gone for medical treatment to receive shots.  The VA psychologist found that the Veteran's experiences in Korea appeared to have contributed to his obsessive compulsive disorder in particular.  

In an October 2011 VA examination for mental disorders, the Veteran was diagnosed with obsessive compulsive disorder, generalized anxiety disorder and adjustment disorder with mixed anxiety and depressed mood.  The Veteran described a traumatic event while stationed in Korea during his active service.  He reported that he and about 20 other service members were in a bus that tipped over into a rice paddy.  The Veteran stated he thought he might die and was pulled out of the bus window by another airman.  He reported that the rice paddy was filled with human feces and that he and the others suffered cuts and went to the medical facility to receive shots and prevent infection.  He stated that, since that event, he had been obsessed with cleanliness and showered two to three times a day for at least 20 minutes per shower.  He denied any concerns about cleanliness or washing prior to this incident.  The examiner opined that it was at least as likely as not that the Veteran's obsessive compulsive disorder had its clinical onset during active duty and was related to an in-service event, described as a bus crash while on active duty in Korea.  He explained that there was no evidence of a psychiatric disorder of any kind in the Veteran's history prior to that incident or prior to his military service.  

After a careful review of the record and resolving all doubt in the Veteran's favor, the Board has determined, based upon the satisfactory and probative evidence set forth above, that service connection for a psychiatric disability is warranted.  

As noted above, the evidence of record supports the Veteran's report of involvement in a bus accident while stationed at Kunsan Air Base in Korea in July 1961 and this incident is conceded.  

The Board finds that the Veteran's statements regarding the bus accident during his active service are competent and credible evidence of the incident.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence).  The Board finds his statements regarding the incident are internally consistent and consistent with the evidence of record.  

The record also reflects that the Veteran has a current diagnosis of a psychiatric disability, variously diagnosed as obsessive compulsive disorder, generalized anxiety disorder, and adjustment disorder with mixed anxiety and depressed mood.  

The Board also finds that the December 2009 VA psychologist opinion and the October 2011 VA examiner's opinion, taken together with the rest of the evidence of record, place the evidence in relative equipoise as to establishing a nexus between the in-service bus accident and the Veteran's currently diagnosed psychiatric disorder and the benefit of the doubt rule will therefore be applied to resolve doubt in favor of the Veteran.  Accordingly, on balance, the evidence of record collectively shows that the Veteran's psychiatric disability, including an obsessive compulsive disorder, is directly related to his active service.  

Thus, as the evidence supports the Veteran's claim, service connection for a psychiatric disability, including an obsessive compulsive disorder, is warranted.  38 C.F.R. §§ 3.102, 3.303 (2012).  See also 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for a psychiatric disability, including an obsessive compulsive disorder, is granted.  



REMAND

Although the Board regrets any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issue of entitlement service connection for a back disability must be remanded for further development.  

Private and VA medical records 

In June 2012, the Veteran provided information, consisting of five business cards, regarding private medical providers he had seen and was still seeing for his back disability.  To date, it appears that no attempt to obtain consent from the Veteran and retrieve these records has been made.  Therefore, a remand is necessary for the AMC/RO to attempt to obtain these private medical records.  

In addition, as the record reflects the Veteran had received continuing treatment at VA and the last VA medical records associated with the file are from January 2013, ongoing medical records should also be obtained.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Supplemental Opinion

Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

The Board observes that, an October 2011 VA examination for the back was provided, however, the VA examiner did not furnish an opinion.  While the AMC obtained an independent medical opinion from a different treatment provider in November 2012, this treatment provider was a podiatrist.  As rationale for the opinion, the podiatrist indicated that there was a lack of a confirmed injury during service.  However, as noted above, the occurrence of the bus accident has been conceded.  Thus, the case should be remanded for the October 2011 VA examiner to provide an adequate opinion regarding the etiology of the Veteran's back disability.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file any pertinent medical records adequately identified by the Veteran, to include all VA medical records from January 2013 to the present and all private treatment records adequately identified by the Veteran, including the five (5) private treatment providers identified in his June 2013 statement.  

Request the Veteran to complete an Authorization and Consent to Release Information to the VA Form 21-4142 for each private physician identified, to include those private treatment providers identified in his June 2013 statement.  All attempts to retrieve these records should be documented in the claims file.

All records which are not duplicates of those already in the claims file should be associated with the claims file.  The AMC/RO should document whether or not these documents were available.  

2.  After the above has been completed, arrange for the VA examiner who performed the October 2011 VA spine examination of the Veteran's back disability, or a similarly qualified specialist, to review the claims file and provide an opinion.  The claims file, to include a copy of this remand, must be made available in conjunction with completion of the report. 

The examiner is asked to offer an opinion addressing whether it is at least as likely as not (50% or greater probability) that any current back disorder had its clinical onset during the Veteran's active service or is related to any in-service disease, event, or injury, including the July 1961 bus accident.  In providing this opinion, please note the Veteran is competent to report the bus accident in service and the Board has conceded the occurrence of this incident and found his report to be credible.  

The examiner must provide a full explanation of the reasons for each opinion furnished.  

3.  Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full.  In particular, determine whether the examiner has responded to all questions posed.  If not, the report must be returned for corrective action.  38 C.F.R. § 4.2 (2012).  

4.  Finally, readjudicate the merits of the Veteran's claim for service connection for a back disability.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto.  An appropriate period of time should be allowed for response. 

Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran need take no action unless otherwise notified. 

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).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs