Citation Nr: 1327024 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-01 678 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Fargo, North Dakota THE ISSUES 1. Entitlement to an effective date prior to June 4, 2008, for the grant of service connection for tinnitus. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include alcohol abuse. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had almost continuous active military service from January 2004 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 and March 2009 rating decisions issued by the RO. In the February 2008 rating decision, the RO denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD; in the March 2009 rating decision, the RO granted service connection for tinnitus and assigned a 10 percent rating effective on June 4, 2008. In June 2013, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal herein decided. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include alcohol abuse 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. FINDINGS OF FACT 1. In June 2013, prior to the promulgation of a decision, the Veteran withdrew his appeal referable to the claim for an effective date prior to June 4, 2008, for the grant of service connection for tinnitus. 2. PTSD is related to a verified in-service stressor. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim for an effective date prior to June 4, 2008, for the grant of service connection for tinnitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. PTSD was incurred in service. 38 U.S.C.A. §§1110, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Given the favorable disposition of the claim for service connection, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Tinnitus An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In June 2013, the Veteran withdrew his claim for an effective date prior to June 4, 2008, for the grant of service connection for tinnitus from appellate consideration. Hence, there remains no allegation of an error of fact or law referable to the claim at this time. Accordingly, the Board does not have jurisdiction to further review this matter, and the appeal is dismissed. PTSD Laws and Regulations 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. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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 also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted for a disease first 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). 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). Analysis As an initial matter, the Board finds that the Veteran did not engage in combat with the enemy. As discussed below, the Veteran served in Iraq and faced incoming mortar fire on a base in Iraq. However, a finding that a veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). The Veteran's DD Form 214 reflects that he received, among others, the National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Good Conduct Medal and Armed Forces Reserve Medal with M Device, none of which, by themselves, demonstrate combat. In addition, the Veteran's military occupation specialty (MOS) was MI systems maintainer/integrator. Moreover, the Veteran's PTSD stressor corroboration research checklist indicated that he faced mortar fire in the performance of his duties as MI systems maintainer/integrator. He did not, however, describe an actual fight or encounter with a military foe or hostile unit or instrumentality. Based on the above, the Board finds that the Veteran did not engage in combat with the enemy and the combat provisions of 38 U.S.C.A. § 1154 are not applicable in this case. There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f). If the alleged stressor is not combat related, the Veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's testimony or statements. 38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, corroboration of every detail of a claimed stressor, including the Veteran's personal participation, is not required; rather, a Veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)). In other words, the Veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). 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 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). "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes incoming mortar, rocket, and sniper fire. Id. The Veteran claims that he has PTSD due to multiple stressors. He faced incoming mortar fire on base in Iraq. Additionally, he reported witnessing a TCN (third country national) get hit by an incoming mortar round. The Veteran testified during the Board hearing and reported in various lay statements that during his period of service in Iraq, he was exposed to approximately 5-20 mortar rounds per day, a number of which landed in proximity to where he was located. He testified that the overall anxiety of not knowing if he would get hit was terrifying. In sum, he testified that he was always in fear of his life. Again, the Veteran is competent to testify as to his observations regarding the in-service incidents, and this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1336 (Fed. Cir. 2006). Given his consistent reports and testimony, the Board also finds the Veteran's testimony as to the in-service incidents to be credible. Further, records from the U.S. Army and Joint Services Records Research Center (JSRRC) confirm that Forward Operations Base (FOB) Warhorse sustained numerous mortar attacks during the time that the Veteran served in Iraq. Also confirmed was that a coalition force soldier (Georgian Army) was wounded in one of the attacks. Thus, December 2008 memo from the RO confirms that the Veteran's claimed stressors were corroborated. Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. at 147 (1997); Moreau v. Brown, 9 Vet. App. at 395 (1996). In this case service treatment records (STRs), including his entrance and separation examinations, do not reveal complaints, treatment, or diagnosis for PTSD or any other psychiatric disorder. In March 2008, July 2008 and December 2008 VA treatment records, the VA psychologist diagnosed PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV). An April 2010 private psychosocial evaluation report reflect that the Veteran presented with a history of anxiety, depression, sleep disturbance, anger flare-ups and relationship problems. The Veteran also reported problems with memory loss, numbed feelings, communications, suicidal thoughts, low self-esteem, hypervigilance, nightmares, intrusive thoughts, distrust of others, self-isolation, obsessional/repeating thoughts, demands perfection from self/others, inability to concentrate and problems starting or completing projects related to his experiences in Iraq. He struggled with panic and anxiety attacks, inability to self-soothe and nervous physical symptoms, including chronic headaches, also related to his experiences in Iraq. The psychologist reported that objective testing showed the Veteran responded honestly and his scores were consistent with PTSD. The psychologist thoroughly documented how the Veteran met each of the criteria for a PTSD diagnosis, explaining that the Veteran experienced, witnessed and was confronted by events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself and others; experienced intense fear and helplessness while under enemy fire; reexperienced the traumatic events; reported persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness; reported persistent symptoms of increased arousal; and, the duration of his symptoms had been 5 years. The psychologist diagnosed the Veteran with PTSD, in accordance with the DSM-IV, secondary to combat trauma. The psychologist also diagnosed the Veteran with chronic alcohol abuse. In a January 2009 report of VA examination, the psychologist concluded that the Veteran "never actually met criteria for PTSD." The psychologist explained that the Veteran's most salient problem was ongoing alcohol dependence, a problem the Veteran has acknowledged. The psychologist explained that although the Veteran reported exposure to mortar fire, his reaction to such was inconsistent with the development of PTSD (i.e., he did not appear fearful and reportedly was laughing when it occurred). The psychologist noted that while the Veteran reported excessive worry about "unnecessary" issues such as being foreclosed upon and being uncomfortable in crowds, he did not avoid crowds or international travel. The psychologist concluded that there was no evidence contained in the medical record or in the evaluation that the Veteran ever met the criteria for PTSD. In the November 2012 report of VA examination, the psychologist found that the Veteran met Criteria A (exposure to a traumatic event) and Criteria B (persistent reexperiencing of the traumatic event) to support a diagnosis of PTSD. However, the psychologist determined that the Veteran failed to meet Criteria C-F to support a diagnosis of PTSD. The psychologist found that the Veteran had no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness (Criteria C); lacked the requisite number of persistent symptoms of increased arousal (Criteria D) [the psychologist found that the Veteran exhibited hypervigilance; however, notably found that the Veteran did not have difficulty falling or staying asleep, despite the Veteran's consistent report to the contrary and a notation in the examination report that the Veteran had chronic sleep impairment]; and, did not meet the full criteria for PTSD (Criteria E and F). The psychologist noted that the Veteran's report on objective testing was credible and reliable. However, the psychologist concluded that while the Veteran credibly and reliably reported symptoms of PTSD, the symptoms were either not trauma related or of insufficient intensity to meet the threshold of an impairing symptom. In this case, the Board finds that at a very minimum, the evidence is in equipoise as to whether the Veteran has a current diagnosis of PTSD related to service. The Board finds the January 2009 and November 2012 VA examination reports to be of low probative value due to the examiner's finding that the Veteran does not have PTSD. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, giving the Veteran the benefit of the doubt, his in-service stressors are corroborated (confirmed by the response received by JSRRC as documented in the December 2008 RO report); he has a PTSD diagnosis in accordance with DSM-IV (as confirmed in the April 2010 private psychological evaluation) and a nexus has been established between his in-service stressors and his PTSD diagnosis (also established in the April 2010 private psychological evaluation and confirmed by the Veteran's competent and credible lay statements and hearing testimony). Accordingly, service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal as to the claim for an effective date prior to June 4, 2008, for the grant of service connection for tinnitus is dismissed. Entitlement to service connection for PTSD is granted. REMAND The Board notes that the record is replete with reference to the Veteran's alcohol and marijuana use as self medication for his PTSD symptoms. The Board notes that as a general matter, VA law and regulations preclude an award of direct service connection for disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant. 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(b), (d); VAOPGPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). The United States Court of Appeals for the Federal Circuit, however, has held that there can be 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). The Court indicated that veterans could only recover if they can 'adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder.' Id. at 1381. In this case, the Veteran has competently and credibly asserted that his alcohol and substance abuse are primarily due to his PTSD symptoms. Additionally, the Board notes that in the report of January 2009 VA examination the psychologist noted that anxiety disorder could be secondary to withdrawal symptoms or associated with his level of alcohol consumption. In view of the Board's favorable determination regarding the Veteran's claim for entitlement to service connection for his PTSD, the RO should reconsider the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include alcohol abuse. Accordingly, the case is REMANDED for the following action: 1. If deemed necessary, schedule the Veteran for a VA psychiatric examination to determine whether it is at least as likely as not the service-connected PTSD caused or otherwise aggravated the Veteran's acquired psychiatric disorder other than PTSD, to include alcohol abuse? If aggravation is found, the examiner should objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. 2. Adjudicate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include alcohol abuse. If the benefit sought remains denied, the Veteran should be provided a SSOC that contains notice of all relevant actions taken on the claim. An appropriate period of time should be allowed for response. Thereafter, as indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs