Citation Nr: 1329253 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 07-07 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2010, the Board reopened the matter of service connection for PTSD and remanded that issue along with the issue of a TDIU rating for additional development. The Board notes that it is aware of the holding in Clemons v. Shinseki that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the Board observes that the Veteran is presently service-connected for panic attacks disorder without agoraphobia and "general mental disorders". Accordingly the claim presently on appeal is limited to that of PTSD. The Board previously referred the issue of entitlement to service connection for sleep apnea. As it is not apparent that any action has been taken regarding this matter, it is again referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The matter of a TDIU rating is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action, on his part, is warranted. FINDING OF FACT The Veteran does not have PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Assist and Notify The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The duty to notify was satisfied by pre-adjudication letters sent to the Veteran in April 2005 and November 2005, which explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA PTSD examinations in August 1995, January 1996, December 2005, and January 2011. These examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Service Connection (PTSD) The Board reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). To substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Certain chronic diseases, including psychoses, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post service (one year for psychoses). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The presumption is not applicable here because, as discussed below, the medical evidence does not support a diagnosis of psychoses within one year of separation from service. In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran has reported such symptoms to include getting anxious easily, being hyperalert, sleep disturbances, and becoming easily frustrated and irritable (particularly around crowds). He stated that at times he will have passive suicidal thoughts, but has had no intent or plan. He has further stated that he feels "useless and alone and not appreciated." He describes low energy levels and a lack of concentration. He stated he began having panic attacks around 25 years of age. See December 2005 and January 2011 VA examination reports. His wife described a change in him upon return from service, stating that "he held back." See April 2005 psychiatric consultation. With regard to PTSD specifically, however, credible supporting evidence is required showing that the claimed in- service stressor occurred. 38 C.F.R. § 3.304(f). Lay evidence may be sufficient where the stressor is related to the Veteran's fear of hostile military or terrorist activity. Id. § 3.304(f)(3). The same verification is not needed, however, for other psychiatric diagnoses. In fact, the Board notes the Veteran is already service-connected for panic attacks disorder without agoraphobia and "general mental disorders." During the pendency of this appeal, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. The provisions of this amendment apply to applications for service connection for PTSD that, among others, were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Accordingly, the provisions apply to this case. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by adding a new paragraph (f)(3), which reads as follows: (f)(3) 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.... Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39843 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3) (2011)). Initially, under the amended 38 C.F.R. § 3.304(f)(3), the stressor claimed must include "fear of hostile military or terrorist activity," which is defined as follows: [T]hat 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) (2012). In April 2005 and September 2008 statements, the Veteran described an alleged stressor, stating that two of his friends were killed on the Cambodia border while on patrol and further, that his unit was under "constant mortar and sniper attack," resulting in numerous people killed daily. On January 2011 VA examination, the Veteran reported being bitten on the ear lobe by a rat and stated that he was "in constant fear that he would be killed" while in Vietnam. The Veteran also described seeing Vietcong bodies "still hanging on the wire." NPRC has confirmed mortar attacks in May 1968 during the Veteran's service in Vietnam. Thus, the Board concedes his in-service stressors insofar as they are related to fear of or actual enemy attacks. See id. The threshold question here, however, is whether the Veteran has a diagnosis of PTSD by "a VA psychiatrist or psychologist or psychologist with whom VA has contracted" related to any conceded in-service stressor. Id. The Board concludes he does not. In support of the Veteran's claim is an April 2005 VA psychiatric consultation where a positive PTSD screen was noted. Specifically, the VA physician found the Veteran met all the diagnostic criteria for PTSD and even noted the Veteran had panic disorder with agoraphobia "secondary to PTSD." The VA physician diagnosed the Veteran with PTSD related to military trauma, including being bitten on the ear by a rat. In addition a December 2005 VA treatment record noted a provisional diagnosis of "rule out PTSD." However, against the Veteran's claim are multiple mental health examinations and medical opinions indicating the Veteran does not have PTSD. On August 1995 VA mental disorders examination, the examiner specifically noted the Veteran's fear of hostile attack and witnessing deaths while in Vietnam. The examiner further noted that while the Veteran reported having some difficulties dealing with Vietnam memories for the first ten to twenty years, he has been able to work full-time and raise a family. Thus, he concluded that the Veteran "does not meet the criteria for PTSD." On January 1996 VA PTSD examination, the examiner noted the Veteran reported that while in Vietnam, "his unit was shot at or shell fragments settled on their camp and also had a few encounters when the enemy tried to infiltrate..." Additionally, it was noted that the Veteran reported sniper fire which occurred almost every night and stated he was always on the alert. The Veteran also stated he saw two American soldiers who were victims of exploded land mines. On mental status examination, he exhibited no startle presentation and talked about his Vietnam War experiences with no apparent change in his composure or presentation. The Veteran reported nervousness, which he stated was helped by his use of Xanax. The examiner noted the Veteran's thoughts of self-harm, but stated the Veteran reported "I was helped at the right time." The examiner noted the Veteran spoke with no difficulty in articulation and no change in emotional tone as he related his history. The examiner further stated the Veteran reported dreams once or twice a week, but was not mentioning any activities related to his military experiences. The Veteran denied hallucinations and was two out of three in object recall. It was noted that his responses were direct, unimpeded, and rational. The examiner stated that he showed good insight and judgment. Based on this evaluation, the examiner did not provide an Axis I diagnosis of PTSD. The Veteran was again afforded a VA examination in December 2005, at which time the Veteran reported being in "high intense stress" while in service and "always in a dangerous environment." The examiner noted that post-military, the Veteran's psychosocial functional status is well maintained, noting that he was able to take care of his family and maintained his job for 30 years until his recent retirement without any problems. Further, the examiner stated that he still enjoys his recreational hobbies. On mental status examination, the examiner noted the Veteran was oriented in all sphere and denied any memory impairment. The Veteran further denied obsessive or ritualistic behaviors and panic attacks. His mood was noted to be pleasant and his speech was normal in rate and rhythm. Following an examination, the examiner noted that the Veteran does not meet the full criteria for a DSM-IV diagnosis of PTSD. The examiner stated that the Veteran's symptoms did not affect his functional aspect of his life, and that his symptoms instead meet the criteria for anxiety disorder not otherwise specified. On January 2011 VA PTSD examination, the examiner also found that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. He stated that "there was repeated embellishment of symptomatology" detected during the interview and further that "the overwhelming evidence is in the treatment record - nearly all of which did not find PTSD, in repeated compensation and pension evaluations that considered, but did not diagnose PTSD, and in the psychological testing that was performed in support of this evaluation - which also does not find PTSD." The examiner noted the conflicting diagnosis from April 2005. He stated that in his opinion, the prior VA physician's reliance on the Veteran's exaggerated reports "led to an unfortunate and misguided diagnostic impression." Here, the Board is particularly persuaded by the combination of the conclusions of the health professionals in August 1995, January 1996, December 2005, and January 2011. These medical opinions are all highly probative as they considered the Veteran's reported stressors in service and self- reported history of his claimed symptomatology. These opinions also were based on a mental status examination and supported by a detailed rationale with citation to the record. The Board is particularly persuaded by the conclusions of the December 2005 and January 2011 examiners, as these conclusions were made after the April 2005 VA psychiatric consultation (which found the Veteran met the criteria for PTSD). Both examiners noted a review of the Veteran's claims file, which included this April 2005 treatment record, and specifically, the January 2011 examiner addressed this record in his rationale. The examiner explained that he observed "many conflictual issues and troublesome inconsistences" during his evaluation of the Veteran and in an evaluation of the Veteran's records. The examiner noted that the Veteran "showed little discrimination in answers quickly marking nearly everything as severe - even after telling me he remembers nothing from his dreams, he marked them as impairing." Regarding the April 2005 VA physician's diagnosis, the examiner stated that it was likely based on the Veteran's exaggerated reports. The Board is also persuaded by the consistency of the negative opinions in the VA examination reports, made over many years by numerous VA medical providers. When weighing the probative value of evidence, the Board must give greater weight to records that provide more information and the basis of the opinion. Here, the April 2005 diagnosis is given limited probative value as it was made without the benefit of a longitudinal review of the Veteran's claims file (including prior evaluations not finding PTSD) and because it is discounted by the weight of the other evidence of record. In contrast, the more recent evaluations (December 2005 and January 2011) were made after a review of the Veteran's claims file, including the April 2005 record. Further, the August 1995, January 1996, December 2005, and January 2011 VA examiners, after a review of the evidence and the Veteran's contentions, determined that while the Veteran's symptomatology is not indicative of PTSD, it was representative of Axis I diagnoses of either panic disorder or anxiety disorder. As noted above, the Veteran is already service connected for panic attacks disorder without agoraphobia and general mental disorders. See July 2008 rating decision. Accordingly, for all the reasons indicated above and because the weight of the evidence tends to show the Veteran does not have PTSD, service connection may not be established on this basis. ORDER Entitlement to service connection for PTSD is denied. REMAND The Veteran contends that the combined effects of his service-connected disabilities prevent him from securing and maintaining substantial gainful employment. The Court has held that in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on the effect that the Veteran's service- connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a). Regulations require that VA consider the combined effects of the service-connected disabilities on employment. 38 C.F.R. § 4.16. Hence, the Board is required to obtain an opinion that considers the combined effects of the service-connected disabilities on employability. The Veteran's service-connected disabilities include peripheral neuropathy of the right lower extremity rated 10 percent from October 12, 2004 and 40 percent from November 13, 2012; peripheral neuropathy of the left lower extremity rated 10 percent from October 12, 2004 and 40 percent from November 13, 2012; panic attacks disorder without agoraphobia and "general mental disorders" rated 30 percent from April 25, 2006; type 2 diabetes mellitus rated 20 percent from January 28, 2002; peripheral neuropathy of the right upper extremity rated 10 percent from October 12, 2004; peripheral neuropathy of the left upper extremity rated 10 percent from October 12, 2004; hypertension rated 0 percent from March 2, 2004; and erectile dysfunction rated 0 percent from October 13, 2004. The combined rating is 90 percent from November 13, 2012. Thus, he meets the schedular requirements for TDIU. On November 2010 Board remand, the RO was directed to obtain an examination for an opinion as to the impact of the Veteran's service-connected disabilities on his ability to secure and follow a substantially gainful occupation. This examination and opinion was not obtained. The Court has held that compliance by the RO with remand instructions is neither optional nor discretionary and that a remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify and provide release forms for any updated (i.e., not already associated with the claims file) private or VA treatment received for any of the claimed conditions. Thereafter, efforts should be made to obtain any and all identified treatment, to include at the VA Medical Center. All efforts to obtain identified medical records should be fully documented, and any VA facility must specifically provide a negative response if records are not available. 2. After the above is complete and records are obtained to the extent available, schedule the Veteran for an appropriate VA examination to determine the current severity and combined impact of the Veteran's service connected disabilities on his ability to obtain and maintain gainful employment. The examiner is to be informed that the Veteran is service connected for right lower extremity rated 10 percent from October 12, 2004 and 40 percent from November 13, 2012; peripheral neuropathy of the left lower extremity rated 10 percent from October 12, 2004 and 40 percent from November 13, 2012; panic attacks disorder without agoraphobia and "general mental disorders" rated 30 percent from April 25, 2006; type 2 diabetes mellitus rated 20 percent from January 28, 2002; peripheral neuropathy of the right upper extremity rated 10 percent from October 12, 2004; peripheral neuropathy of the left upper extremity rated 10 percent from October 12, 2004; hypertension rated 0 percent from March 2, 2004; and erectile dysfunction rated 0 percent from October 13, 2004. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner is to assess the current severity of each service-connected disability, specifically consider the Veteran's level of education and employment experience, and render an opinion with regard to the combined impact his service-connected disabilities have on his ability to obtain and maintain gainful employment. The examiner should also consider and address the January 2012 statement from Dr. Fibel stating that the Veteran "is unable to seek gainful employment due to service connected disabilities likely related to Agent Orange exposure." The examiner should provide a rationale for this opinion that takes into consideration the Veteran's reports regarding his current symptoms and capabilities. 3. The AOJ should review the examination report to ensure that it contains the information, opinion, and rationale requested in this remand. 4. Following the completion of the foregoing and any other development deemed necessary, readjudicate the Veteran's claim for entitlement to TDIU benefits. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board, if in order, for further appellate review. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ SHEREEN M. MARCUS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs