Citation Nr: 1328322 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-15 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a mood disorder with major depressive and anxious features. REPRESENTATION Appellant represented by: John R. Worman, Attorney at law ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran had active military service from February 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied a claim for service connection for PTSD. The Veteran requested a Board hearing at a local VA office in his May 2011 substantive appeal (VA Form 9). However, he cancelled his hearing request in an October 2011 statement. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). The United States Court of Appeals for Veterans Claims (Court) held that, when a claimant requests service connection for PTSD, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the record shows that the Veteran has diagnoses of various psychiatric disorders. Accordingly, the Board has recharacterized the issue as set forth on the title page. The issue of service connection for a respiratory disorder, including due to herbicide exposure, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See May 2011 substantive appeal. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has PTSD that is as likely as not related to his active duty. 2. The Veteran has a mood disorder with major depressive and anxious features that is related to his service- connected tinnitus and diabetes mellitus. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, he has PTSD that was incurred in his military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. A mood disorder with major depressive and anxious features is secondary to service-connected tinnitus and diabetes mellitus. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2012). In this case, the Board is granting in full the issue of service connection for a psychiatric disorder, to include PTSD and a mood disorder. Consequently, the Board finds that any lack of notice and/or development cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Analysis A. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). On the question of the occurrence of an in-service stressor to support the diagnosis of PTSD, the evidence necessary to establish the occurrence of an in-service stressor varies depending on whether or not the Veteran engaged in combat with the enemy. Gaines v. West, 11 Vet. App. 353, 358 (1998). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressor is related to combat, the Veteran's lay testimony regarding the reported stressor must be accepted as conclusive evidence as to the actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). The phrase "engaged in combat with the enemy" means that the Veteran must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. The fact that the veteran served in a "combat zone" does not necessarily mean that he engaged in combat against the enemy. Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized citations or other official records. No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each item. Any assertions of combat service are not ignored, but are evaluated along with other evidence. A mere assertion of combat service, alone, is insufficient to establish this fact. VAOPGCPREC 12-99; Zarycki v. Brown, 6 Vet. App. 91 (1993) (mere presence in a combat zone is not sufficient to establish combat service). Effective July 13, 2010, the regulations governing adjudication of service connection for PTSD were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in- service stressor. For cases pending before VA as of that date, the following regulation applies: 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. 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. 38 C.F.R. § 3.304(f)(3). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran seeks entitlement to service connection for various psychiatric disorders, including PTSD. Specifically with respect to PTSD, he argues that he has PTSD as the result of traumatic experiences suffered during his active military service in the Republic of Vietnam (RVN). The Veteran reported while working on convoy support repairing damaged vehicles and while driving a tractor trailer hauling ammunition to different fire bases, including Firebase Mace and Firebase Wade, "there was always rounds bouncing off the truck," including one occasion when an unexploded RPG "pen[e]trated the gas tank and then did not go off." The Board finds that entitlement to service connection for PTSD is warranted. The Veteran has stated that he was exposed to small arms and RPG fire. Service personnel records confirm his primary duty in RVN at Long Binh from January 1971 to January 1972 was as a heavy vehicle driver. JSRRC research revealed that Daily Staff Journals from Long Binh Post noted that on May 20, 1971, enemy 122 mm mortar rounds struck Firebase Mace; there were sniper attacks and enemy rocket attacks in June and July 1971 noted in Long Binh's Serious Incident Reports; and Viet Cong sappers almost penetrated the 92nd Engineer Battalion, Long Binh perimeter on July 11, 1971. For a stressor to be sufficient for PTSD, the stressor must meet two requirements: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or a threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror." Pentecost v. Principi, 16 Vet. App. 124, 127 (2002). Moreover, with regard to the credible-supporting-evidence, or corroboration, requirement of 38 C.F.R. § 3.304(f), the United States Court of Appeals for Veterans Claims (Court) has held that a Veteran does not have to prove his physical proximity to, or firsthand experience with, the attacks. Rather his presence with his unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. Id. at 128. Thus, in accordance with Pentecost, the Board finds that the Veteran's competent and credible report of his presence at Long Binh and Firebase Mace while they came under rocket, sniper, and mortar fire is sufficient to establish his exposure to a stressful event while serving in RVN. Furthermore, service records reveal that the Veteran served in RVN as a heavy vehicle driver, which the Board finds is consistent with the places, types, and circumstances of his service in RVN as reported by the Veteran. Finally, the Veteran's VA providers have repeatedly related the Veteran's PTSD to stressful experiences in service. See VA treatment records dated December 2009, January 2010 (inpatient psychiatric treatment record), February 2010, and April 2011. The Board is cognizant of the opinion of the August 2010 VA examiner who determined that the Veteran did not meet the criteria for a diagnosis of PTSD. The opinion of the examiner was based on examination of the Veteran, a review of the results of psychological testing, and a review of VA treatment records. Significantly, however, the examiner noted that his review of these VA treatment records was limited as "CPRS does not allow for a complete progress note review at a remote site." Further, he acknowledged that the Veteran's psychological test results were "precisely congruent with the mean for individuals with posttraumatic stress disorder from the Vietnam population in the tested normed group." In light of the roughly equal positive and negative evidence with respect to the PTSD claim, the Board finds that, at minimum, the evidence in this case is in equipoise regarding the question of whether the Veteran has PTSD that is related to his military service. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for PTSD is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Psychiatric Disorders other than PTSD During the course of the appeal, the Veteran has also been diagnosed with an anxiety disorder, not otherwise specified (August 2010 VA examination report); adjustment disorder vs. major depressive disorder (VA treatment records); and a mood disorder with major depressive and anxious features (July 2013 private psychological evaluation report). In addition, the Veteran has been diagnosed with various substance abuse disorders, in remission; however, any substance abuse disability is not subject to service connection. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.301(d); VAOPGPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999) (law and regulations preclude an award of direct service connection for a disability that originated due to substance abuse as such abuse is deemed to constitute willful misconduct on the part of the claimant); see also Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1389- 91 (for claims filed after October 31, 1990, prohibiting payment of compensation for a disability that is a result of a Veteran's own alcohol or drug abuse). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition also is compensable under 38 C.F.R. § 3.310(a). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board also finds that the evidence supports granting the Veteran's claim of service connection a mood disorder with major depressive and anxious features as secondary to his service-connected tinnitus and diabetes mellitus. In addition, in this case there is no evidence of record which would allow the Board to determine which psychiatric symptoms are related to his service-connected PTSD and mood disorder with major depressive and anxious features and which are exclusively related to some nonservice-connected psychiatric disorder. In fact, the July 2013 mental disorders disability benefits questionnaire (DBQ) prepared by Dr. A. Fink, Ph.D., clearly remarked that the Veteran had more than one diagnosed mental disorder and that it was not possible to differentiate what symptoms are attributable to each diagnosis as "[t]he symptom complex reflects the underlying condition and cannot be meaningfully differentiated." When it is not possible to separate the effects of a service-connected disorder and a nonservice- connected disorder, the signs and symptoms should be attributed to the service-connected disorder. Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the Board shall adjudicate the Veteran's mood disorder claim as encompassing all of her psychiatric symptoms, regardless of the specific diagnosis assigned to them in any particular record. The Veteran does not contend, and the competent evidence does not show, that he incurred an acquired psychiatric disability other than PTSD, during active service. Nor does he contend that his current acquired psychiatric disability, other than PTSD, is related directly to active service or any incident of service. See 38 C.F.R. §§ 3.303, 3.304. The Veteran has contended instead that his service-connected tinnitus and diabetes mellitus caused or aggravated (permanently worsened) his acquired psychiatric disability other than PTSD (variously diagnosed as depression, an anxiety disorder, and a mood disorder), and he is entitled to service connection on a secondary basis. See 38 C.F.R. § 3.310. VA already has found that service connection is warranted for the Veteran's tinnitus and diabetes mellitus. See September 2010 and June 2013 rating decisions. The evidence also shows that the Veteran's service-connected tinnitus and diabetes mellitus caused or aggravated (permanently worsened) his acquired psychiatric disability other than PTSD. In this regard, after reviewing the claims folders and having a telephonic interview with the Veteran, Dr. Fink diagnosed a mood disorder with major depressive and anxious features that was caused by and permanently aggravated by his service-connected tinnitus and diabetes mellitus. In his July 2013 DBQ, Dr. Fink explained that "the impact of tinnitus and diabetes . . . can be expected to produce significant depressive and anxious symptoms." He supported his conclusion by noting "[t]his comorbidity is well- established in the [medical] literature," and he cited a 2013 article from the Journal of Clinical Psychology. He explained the effects of the service-connected tinnitus and diabetes included "problems standing and walking, communication difficulties, pain, sleep difficulties, depressed mood, and anxiety." He described them as "continuous" and "dominant." There is no competent contrary opinion of record. In summary, the Board finds that the evidence supports granting service connection for an acquired psychiatric disability other than PTSD, to include a mood disorder with major depressive and anxious features, as secondary to service- connected tinnitus and diabetes mellitus. ORDER Service connection for PTSD and a mood disorder with major depressive and anxious features is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs