Citation Nr: 1329510 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 07-34 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than October 17, 2007, for the assignment of a 40 percent disability rating for service-connected diabetes mellitus with impotency (herbicide), onychomycosis, and nephropathy with hypertension. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from July 1967 to July 1971, to include a tour of duty in the Republic of Vietnam. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas. In April 2013, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the above hearing, the undersigned clarified the issues on appeal and inquired as to the etiology, continuity, and severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU 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. During the June 2013 hearing, prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated a desire to withdraw from appeal the issue of an effective date earlier than October 17, 2007, for the assignment of a 40 percent disability rating for service-connected diabetes mellitus with impotency (herbicide), onychomycosis, and nephropathy with hypertension. 2. Resolving all reasonable doubt in the Veteran's favor, PTSD is manifested as a result of stressors that he experienced during combat service in Vietnam. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the Veteran as to the issue of an effective date earlier than October 17, 2007, for the assignment of a 40 percent disability rating for service-connected diabetes mellitus with impotency (herbicide), onychomycosis, and nephropathy with hypertension, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawn Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). 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 the present case, during the June 2013 hearing, the Veteran indicated that he wished to withdraw his appeal as to the issue of an effective date earlier than October 17, 2007, for the assignment of a 40 percent disability rating for service-connected diabetes mellitus with impotency (herbicide), onychomycosis, and nephropathy with hypertension. This request was reiterated in correspondence received by the RO later in June 2013. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the Board's favorable decision in granting service connection for PTSD, the claim is substantiated, and there are no further VCAA duties. See Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004). Service Connection for PTSD Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Most recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran asserts that he suffers from PTSD as a result of his combat experiences in Vietnam. The establishment of service connection for PTSD has unique evidentiary requirements, generally requiring: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If it is established through military citation or other supportive evidence that the Veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships 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) (2); 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the Veteran engaged in combat). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that the Veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If VA determines either that the Veteran did not engage in combat with the enemy or that the Veteran did engage in combat, but that 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). 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). On July 13, 2010, VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. This revision adds to the types of PTSD claims that VA will accept through credible lay testimony alone as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." A review of the Veteran's Report Of Separation From Active Duty (DD Form 214) shows that his primary military occupational specialty was rifleman. His decorations included the Vietnam Service Medal with one star, Republic of Vietnam Campaign Medal with device, Navy Achievement Medal with Combat V Device, Meritorious Unit Citation, and the Combat Action Ribbon. His service personnel records confirm that he participated in the Counterinsurgency action against the VC, Operation Napoleon, Operation Osceola II, Operation Jeb Stuart, Operation Napoleon/Saline, Operation Kentucky, Operation Lancaster II, Third Marines Operation Jones Creek Area, Operation Scotland II, Operation Lancaster II Jupiter, Operation Kentucky (OPNS In Leatherneck Square), Operation Lancaster, Operation Kentucky, and Operation Taylor Common. VA outpatient treatment records dated from June 2002 to December 2005 show that the Veteran was diagnosed intermittently with dysthymia, not otherwise specified; dysthymic disorder; hypothyroidism induced mood disorder, depressed type, provisional dysthymic disorder; and chronic PTSD. A VA PTSD examination report dated in December 2005 shows that the Veteran described his stressor as his combat experience in Vietnam between 1968 and 1969. He added that during fire fights, which he described as the worst experiences, he had feared for his life. He also reported seeing dead bodies. He added that he witnessed a fellow Marine named Garcia being shot in the head while he was standing next to him. Following examination of the Veteran, the VA examiner indicated that he had not met the DSM-IV criteria for a diagnosis of PTSD. The diagnosis by the VA psychologist was depressive disorder, not otherwise specified. In an addendum dated in May 2006, the VA examiner added that it was less likely than not that the depressive disorder was due to, or aggravated by combat stressors in service. A VA PTSD examination report dated in September 2007 shows that the Veteran reported that he had been undergoing weekly psychiatric treatment for his symptoms which were consistent with those as set forth above. The diagnosis by the VA psychologist was depressive disorder, not otherwise specified. A letter from the Veteran's VA psychiatrist dated in September 2007 shows that he was said to have been treated since May 2006, and that he was attending regular group therapy for PTSD. His current diagnosis was said to be chronic PTSD and dysthymia. A VA examination report dated in April 2009 shows that the Veteran reported symptoms which were consistent with those as set forth above. The diagnosis by the VA psychologist was dysthymic disorder. The examiner concluded that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner acknowledged the prior diagnosis of PTSD, but reasoned that it had not been accompanied by documentation that the reported symptoms were sufficient to meet a diagnosis of PTSD. The examiner concluded that it was less likely as not that he had PTSD or other psychiatric conditions resulting from his combat experiences. A medical report from the Veteran's VA psychiatrist dated in February 2010 shows that the Veteran reported, in part, that he had been in Vietnam combat and had many traumatic experiences, being in the line of fire and seeing people killed. He described current nightmares, intrusive thoughts about Vietnam, increased startle response, avoidant behavior, hypervigilence, and anger. Following examination of the Veteran, the VA psychiatrist gave a diagnosis of chronic PTSD and dysthymic disorder by history. Vet Center counseling records dated from May 2011 to June 2012 show that the Veteran was being treated intermittently for symptoms associated with his asserted PTSD. A VA examination report dated in October 2012 shows that the Veteran provided a history consistent with that as set forth above. The VA psychologist again indicated that the Veteran did not meet the full criteria for a diagnosis of PTSD. Instead, a diagnosis of mood disorder was provided. A letter from the Veteran's VA psychiatrist dated in December 2012 shows that he was said to have been treated since May 2006. His current diagnosis was said to be PTSD and severe recurrent major depressive disorder. During his June 2013 hearing, the Veteran reported that he was attending regular therapy for the symptoms associated with his PTSD. He indicated that his psychiatrist had told him he had PTSD. He added that he would still have dreams, nightmares of his experiences in Vietnam. Having carefully reviewed the evidence of record in this case, the Board finds that the Veteran has been diagnosed with PTSD at various times during the course of this appeal. While the VA psychologists in December 2005, September 2007, April 2009, and October 2012 concluded that he did not meet the criteria for PTSD, the Veteran's VA psychiatrist that has been treating him since 2006 has consistently provided a diagnosis of PTSD. In the February 2010 VA medical record, his VA psychiatrist specifically took into account the stressful events reported by the Veteran as experienced in combat in Vietnam in providing the diagnosis of PTSD. It is the responsibility of the Board to review all the evidence of record and reach a conclusion by applying the standard of review set forth above. The Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). "[I]t is not error for the BVA to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reason or bases. It is the responsibility of the BVA, . . . to assess the credibility and weight to be given to evidence." " Owens v. Brown, 7 Vet. App. 429, 433 (1995). As such, the Board finds that the medical evidence of record as to the question of whether the Veteran has a diagnosis of PTSD to, at the very least, be in equipoise. The remaining question, therefore, is whether there is an inservice stressor and either evidence of combat service or corroborating evidence the stressor occurred. A finding of combat service is significant because under 38 U.S.C.A. § 1154(b), if the Veteran is found to have served in combat, VA shall accept as sufficient proof of a stressor satisfactory lay evidence if it is consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of the event. VA's General Counsel has held that the determination of whether a Veteran "engaged in combat with the enemy" depends on multiple factors, including the requirement that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case by case basis. VAOPGCPREC 12-99. The General Counsel 's opinion is binding on the Board. 38 U.S.C.A. § 7104(c); 38 C.F.R. § 14.507. In the present case, the Veteran has described specific stressful events - being in the line of fire in combat with the enemy; witnessing another soldier being shot in the head; and seeing dead bodies. In this regard, as noted above, the Veteran's service personnel records confirm that he was a rifleman and had participated in multiple combat operations in Vietnam. Moreover, his DD Form 214 confirms the receipt of the Combat Action Ribbon. As the Board finds the Veteran engaged in combat with the enemy, the Veteran's lay testimony is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required. 38 C.F.R. § 1154. Therefore, the Veteran has provided evidence of all three elements required for a grant of service connection for PTSD, and the claim for service connection for PTSD is granted. ORDER The appeal as to the issue of an effective date earlier than October 17, 2007, for the assignment of a 40 percent disability rating for service-connected diabetes mellitus with impotency, onychomycosis, and nephropathy with hypertension, is dismissed. Service connection for PTSD is granted. REMAND As a result of this decision, this Board has granted service connection for PTSD. This will require a disability rating to be assigned by the RO, which in turn, could affect whether the Veteran meets the schedular criteria for a TDIU. Accordingly, the Board finds that the Veteran's claim for entitlement to a TDIU cannot be adjudicated until RO assigns an initial disability rating for his now-service-connected PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: The RO/AMC shall implement the Board's decision awarding service connection for PTSD. Following the assignment of an initial disability rating for the service- connected PTSD, the RO/AMC shall readjudicate the issue of entitlement to a TDIU. If the issue remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case and afforded a reasonable period of time within which to respond thereto. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims remanded by the Board or the Court 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs