Citation Nr: 1329113 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-38 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Jessica L. Cleary, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran had active service from February 1964 to April 1967, including service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The Veteran appeared and testified at a Travel Board hearing held before the undersigned Veterans Law Judge in March 2011. A transcript of the hearing has been associated with the claims folder. A brief history of the Veteran's claims is instructive. The Veteran first sought service connection for both PTSD and tinnitus in a December 2007 claim. The RO denied his claims in an April 2008 rating decision. The Veteran filed a timely notice of disagreement, and the RO issued a statement of the case in August 2009. The Veteran filed a timely substantive appeal, and he testified in a Travel Board hearing in March 2011. In September 2011, the Board denied the Veteran's claim for service connection for tinnitus and remanded his claim for service connection for PTSD for further development. The Veteran appealed the denial of service connection for tinnitus to the Court of Appeals for Veterans Claims (Court). In January 2013, the Court issued a memorandum decision that affirmed the Board's denial of the Veteran's service connection claim for bilateral hearing loss and vacating and remanding the Board's denial of tinnitus. With regard to the Veteran's PTSD claim, following the September 2011 remand, the Board denied this claim in a September 2012 decision. The Veteran appealed this denial to the Court, and in January 2013, the Court approved a Joint Motion for Remand that vacated the Board's decision and returned this matter to the Board. The Board recognizes that where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate. See Winslow v. Brown, 8 Vet. App. 469, 472 (1996). The Board also acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to service connection for tinnitus 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 The Veteran suffers from PTSD that is causally related to his active service and the stressors he experienced therein. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. Entitlement to Service Connection for a Psychiatric Disorder Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic; continuity is also required where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Generally speaking, in order to grant a service connection claim, the Board must find medical evidence that the Veteran currently suffers from a disability, medical evidence (or, in certain circumstances, lay evidence) of an in service incurrence or aggravation of that disability, and evidence of a nexus between the present disability and the disability claimed in service. Hickson v. West, 12 Vet. App 247, 253 (1999) (citing 38 C.F.R. § 3.303(a)). The Veteran, however, is seeking service connection for PTSD, a disability which has its own criteria. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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). With regard to the stressor element, VA has recently amended the regulation governing service connection for PTSD. Specifically, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans. The amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the service member's claimed in-service stressor is related to "fear of hostile military or terrorist activity." The amended version of 38 C.F.R. § 3.304(f)(3) states: 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 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). Further, VA regulation has long provided that for combat veterans, if the claimed stressor is related to that combat and is consistent with the circumstances of the veteran's service, then lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). Facts and Analysis Again, to be successful on his claim for service connection for PTSD, the evidence must show that the Veteran currently suffers from this condition, credible evidence of an in-service stressor, and a link between his current condition and his in-service stressors. The Board denied the Veteran's claim in its September 2012 decision on the basis that the more probative evidence of record did not show that the Veteran currently suffered from PTSD. Weighing against his claim is the opinion of the VA examiner who examined the Veteran in April 2008 and October 2011. In the initial examination, the examiner did not diagnose the Veteran as suffering from any mental condition. She wrote that the Veteran had "mild or transient symptoms not meeting a mental disorder diagnosis," and that the Veteran suffered from "situational distress within normal limits." In the October 2011 examination, the examiner again found that the Veteran does not have a diagnosis of a mental disorder that conforms to DSM-IV criteria, including PTSD. She then provided a detailed explanation of why her diagnosis differed from that of a VA treating psychologist and why she felt that a PTSD diagnosis was improper. In favor of the Veteran's claim was the opinion of his VA treating psychologist and an evaluation from a private psychologist. The Veteran's VA psychologist first diagnosed him as suffering from PTSD in a December 2007 psychiatry consult. In a January 2008 letter, that same psychologist wrote that the Veteran "fully and unequivocally meets the DSM-IV diagnostic criteria for PTSD," and that "the causal relationship between [his] current symptomatology and his traumatic exposure in Vietnam clearly appears more likely than not." The Veteran also submitted an August 2012 medical opinion from Jonathan Mangold, Ph.D. Dr. Mangold stated that, based on his review of the record and his interview with the Veteran, "it is more likely that no that [the Veteran] does indeed have PTSD and that it is directly linked to what he saw and did in Vietnam." The January 2013 Joint Motion vacated the Board's decision on the basis that it did not provide an adequate statement of reasons and bases for finding the VA examiner's opinion to be more probative than the two discounted opinions. Further, since that time, the Veteran submitted a second private opinion. This opinion, from Jason Cooper, Ph.D., concluded that the Veteran suffers from PTSD and depressive disorder, and that both of these conditions are more likely than not related to the Veteran's combat experience in Vietnam. Given the subsequent opinion provided by Dr. Cooper as well as the instructions of the joint motion, the Board determines that the Veteran does currently suffer from PTSD, satisfying the first criterion of the regulation. Next, with regard to his stressors, the Board notes that the Veteran is considered a combat veteran, and his stressors therefore may be confirmed on the basis of his lay testimony alone. The Veteran's initial DD-214 shows that the Veteran was awarded the National Defense Service Medal, the Vietnam Service Medal with one star, and the Vietnam Campaign Medal with device. In January 2010, however, a Navy Personnel Command review of the Veteran's records found that he was also entitled to the Combat Action Ribbon. This award shows that the Veteran was engaged in combat, and his stressors related to that combat may therefore be conceded. Over the course of his appeal, the Veteran has described numerous stressors that are credible and consistent with his combat service and awards (including witnessing the deaths of fellow Marines and Vietnamese civilians), and the Board accepts these statements as valid for purposes of his claim for service connection for PTSD. Finally, as detailed above, each of the evaluations that found that the Veteran currently suffers from PTSD also attributed his condition to his combat experience in Vietnam. In summary, the evidence shows that the Veteran currently suffers from PTSD, that he experienced stressors during his combat service in Vietnam, and that his PTSD diagnosis is related to his in-service stressors. Service connection for PTSD is thus warranted. ORDER Entitlement to service connection for PTSD is granted. REMAND The Veteran's claim for service connection for tinnitus must be remanded. In its September 2011 decision that denied the Veteran's claim, the Board found that an April 2008 examiner's opinion regarding the etiology of the Veteran's claimed tinnitus was sufficient. In its January 2013 memorandum decision, the Court found that the Board should have remanded the Veteran's claim in order that the Veteran could undergo a new VA examination with the possibility of a better articulated opinion. In accordance with the Court's decision, the Board shall remand this claim and order that the Veteran be granted a new VA examination. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA audio examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. After examining the Veteran, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed tinnitus is related to his active service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative and return the case to the Board. The appellant 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 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). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs