Citation Nr: 1329320 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-23 351 ) 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. 2. Entitlement to service connection for depression. 3. Entitlement to service connection for a disability manifested by breathing difficulty to include sleep apnea. 4. Entitlement to service connection for residuals of a fractured nose. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and G.K. ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1968 to September 1970 with subsequent service in the National Guard from February 1978 to October 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's file. In April 2011, the Board remanded the claim for further evidentiary development. While on appeal in a rating decision in October 2012, the RO granted service connection for a hearing loss disability and claim is no longer under Board's jurisdiction. The claims of service connection for depression, a disability manifested by breathing difficulty to include sleep apnea, and residuals of a fractured nose are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The diagnosis of posttraumatic stress disorder is related to the in-service stressor of fear of hostile military activity. CONCLUSION OF LAW The criteria for service connection for posttraumatic stress disorder are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. 3.304(f) (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In light of the grant of service connection for posttraumatic stress disorder, the only claim decided, further discussion here of VCAA compliance is not necessary. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection 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). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); 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). Under 38 C.F.R. § 3.304(f), where the claimed noncombat in- service stressor 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 posttraumatic stress disorder and that the Veteran's symptoms are related to the stressor, in the absence of clear and convincing evidence to the contrary and where 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. "Fear of hostile military activities" means that a Veteran experienced, witnessed, or was confronted with an event 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. 38 C.F.R. § 3.304(f)(3). Facts The Veteran served in Vietnam from September 1969 to September 1970. His military occupational specialty was generator repairman. The Veteran was awarded the Bronze Star Medal for meritorious service against a hostile force in Vietnam. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of posttraumatic stress disorder. After service VA records show that in June 2005 history included the Veteran's exposure to "unsafe conditions" in Vietnam. The provisional diagnosis was posttraumatic stress disorder based on the circumstances of the Veteran's military service and the Veteran's symptoms. The qualifying term "provisional" was later removed. In February 2006, a VA therapist at the Louisville Vet Center stated that the Veteran had been treated there since 2005, and that the diagnosis was posttraumatic stress disorder as a result of "combat" service in Vietnam. In February 2006, the Veteran was referred to a VA psychiatrist for evaluation. The psychiatrist stated that the Veteran's symptoms met the criteria for a diagnosis of posttraumatic stress disorder, although the VA psychiatrist did not identify the in-service stressor. The Veteran has received VA mental health treatment for posttraumatic stress disorder throughout the course of the appeal. In September 2008, neuropsychological testing by VA psychologist was consistent with the diagnosis of posttraumatic stress disorder. On VA examination in May 2011, the Veteran described exposure to mortars and other enemy fire in Vietnam. The VA examiner stated that currently not all of the DSM-IV criteria for a diagnosis of posttraumatic stress disorder were shown, but the Veteran had several symptoms of PTSD and it was more likely than not that the Veteran met the diagnostic criteria for PTSD at one time. The VA examiner referred to the VA mental health evaluation in 2008, which included neuropsychological testing, as support of the diagnosis. Although the criteria for a diagnosis of posttraumatic stress disorder were not met, the VA examiner did find that the Veteran's fear of hostile military activity resulted in anxiety disorder, which has since been service connected. Analysis Although the Veteran's military occupational specialty is one not ordinarily associated with exposure to combat, the Veteran testified that he often flew in a helicopter to remote locations in the field to repair generator repairs and that he was exposed to combat conditions on the missions. The Veteran's testimony is consistent with the citation for the Bronze Star Medal for meritorious service against a hostile force in Vietnam. The Veteran's statements as to fear of hostile military activity in Vietnam are credible. In order for a claimant to prevail on a claim for posttraumatic stress disorder based on fear of hostile military activity, a VA psychiatrist or psychologist must confirm that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder. 38 C.F.R. § 3.304(f). During the appeal period, a VA psychiatrist diagnosed posttraumatic stress disorder in February 2006. In September 2008, a psychologist, who conducted neuropsychological testing, stated the results were consistent with posttraumatic stress disorder. The VA examiner in May 2011 found that the Veteran's symptoms did not currently meet the DSM-IV criteria for a diagnosis of posttraumatic stress disorder, but the VA examiner did state that the Veteran's symptoms had met the criteria for the diagnosis prior to the examination, based on fear of hostile military activity. The requirement of a current disability may be met by evidence of the disability at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The record shows a diagnosis of posttraumatic stress disorder during the appeal period and a determination by a VA examiner that the Veteran's fear of hostile military activity satisfied the requirement for a stressor under the DSM-IV. For these reasons, service connection is warranted. ORDER Service connection for posttraumatic stress disorder is granted. REMAND On the claim of service connection for depression, as the evidence of record is insufficient to decide the applicable theories of service connection, further development under the duty to assist is needed. On the claim of service connection for a disability manifested by breathing difficulty, the Veteran submitted a letter in May 2007 from a physician, who stated that the Veteran's breathing difficulty was the result of a nasal fracture. Therefore, a decision on the claim is deferred, pending development of the claim for service connection for residuals of a fractured nose. On the claim of service connection for residuals of a fractured nose, the Veteran testified that he was involved in a helicopter crash in Vietnam, and that he experienced symptoms consistent with a fractured nose as a result. He further testified that his nose was set at an aid station, and that he did not seek further treatment for it. The Veteran's statements as to symptoms of a fractured nose as a result of a helicopter crash are consistent with the time, place and circumstances of his service. As the Veteran has not been afforded a VA examination and as the evidence is insufficient to decide the claim, further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination by an examiner, who has not previously examined the Veteran, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent) that: a). Depression is a manifestation of service-connected anxiety or posttraumatic stress disorder, or, b). Depression is a separate disorder and if a separate disorder whether the disorder is due to service, or, alternatively, c). Depression is aggravated by service-connected anxiety or posttraumatic stress disorder? In formulating an opinion on aggravation, "aggravation" means a permanent increase in severity, that is, an irreversible worsening of a disability as a result of a service-connected disability beyond the natural clinical course of the nonservice-connected disability as contrasted to a temporary worsening of symptoms. The Veteran's file must be made available to the VA examiner. 2. Afford the Veteran a VA examination to determine: a). Whether the Veteran has residuals of a nasal fracture and, if so, b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent) that: The residuals of a nasal fracture are consistent with the in-service injury and history described by the Veteran. c). Whether the symptoms of breathing difficulty are related to nasal fracture or the development of a new and separate condition? The Veteran's file must be made available to the VA examiner for review. 3. After the above development is completed, adjudicate the remaining claims on appeal. If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs