Citation Nr: 1330772 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-04 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a psychiatric disability, claimed as posttraumatic stress disorder. 2. Entitlement to service connection for a gastrointestinal disability. 3. Entitlement to an initial compensable rating for hyperhidrosis. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from September 2003 to September 2007. Amongst other decorations, the Veteran is a recipient of the Combat Action Ribbon. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Newark, New Jersey. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2011; a transcript of the hearing is associated with the claims file. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issues of entitlement to service connection for a gastrointestinal disability and entitlement to an initial compensable rating for hyperhidrosis are addressed in the REMAND that follows the decision below. FINDING OF FACT The Veteran's current anxiety disorder, variously diagnosed, is related to his active service. CONCLUSION OF LAW An anxiety disorder, variously diagnosed, was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate his claim for entitlement to service connection for a psychiatric disability, claimed as posttraumatic stress disorder. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may 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). Generally, in order for a claim for service connection for posttraumatic stress disorder (PTSD) to be successful, there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013); (2) a link, established by medical evidence, between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In terms of his present disability, the medical evidence reflects multiple psychiatric diagnoses rendered during the course of the Veteran's claim. Post-service VA records show that he has been diagnosed with adjustment disorder with anxious mood and PTSD. Most recently, he was diagnosed with a generalized anxiety disorder during a November 2010 VA examination. The Veteran attributes his current psychiatric disability to multiple incidents that reportedly occurred during his active service. As reflected in his August 2011 hearing testimony and statements during the course of treatment, he claims that his psychiatric disorder began when he returned from his first tour in Iraq, where he lost fellow Marines, witnessed the explosion of multiple improvised explosive devices (IED's), and protected mortuary crew that picked up dead Iraqi people coincident to his duties as a tow gunner. In addition, he testified that he noticed increased symptoms of nervousness and anxiety immediately after discharge from service, to include "becoming real uneasy" around people. Here, the Board acknowledges that the Veteran primarily claims that he has PTSD as a result of the aforementioned in-service events. As discussed below, the most persuasive medical evidence, the report of a November 2010 VA examination performed in response to his claim, shows that he does not meet the diagnostic criteria for PTSD. However, he does have an anxiety disorder, variously diagnosed, that the Board has determined is related to his active service. Service treatment records do not show that the Veteran sought treatment for or was found to have a psychiatric disorder. The report of a September 2006 post-deployment assessment shows the Veteran reported that he felt down, depressed, or hopeless. The report of a July 2007 separation examination shows that the Veteran's psychiatric status was found to be normal. The Veteran's claim for service connection for psychiatric disability was received in January 2009. In response to the claim, the Veteran was afforded a VA examination in August 2009. He reported that he experienced nightmares, some anxiety, and nervousness around large groups of people. He reported a history of IED's exploding around him and getting shot at, while serving in Iraq, as well as a history of providing security for dead bodies during such service. Upon examination and review of the claims file, a VA psychologist did not provide a diagnosis. A VA outpatient treatment record dated in October 2009 demonstrates that the Veteran contacted VA by telephone and reported that he had had feelings of anxiety since his return from Iraq. VA outpatient treatment records dated in December 2009 and January 2010 show that the Veteran reported feeling cut off from others. He also reported symptoms of anxiety, an inability to sleep, intrusive memories of war, hypervigilance, and avoidance behavior. Regarding his second tour in Iraq, he described his duties as a lead gunner in the truck, with the responsibility to watch out for an entire section of trucks. He led a convoy to Fallujah, and once there, patrolled the main security road. He was exposed to two bombs, IED explosions, and witnessed a truck being hit by enemy fire. The Veteran was diagnosed with PTSD. A March 2010 VA outpatient treatment record shows that the Veteran reported feelings of anxiety. The examiner prescribed medication. The assessment was PTSD and adjustment disorder. An April 2010 VA outpatient treatment record demonstrates that the Veteran reported that he experienced intrusive dreams specific to his service, as well as feelings of anxiety. The assessment was PTSD and an anxiety disorder. In November 2010, the Veteran underwent a VA examination, during which he reported that he continued to have anxiety in social situations, to include school. He reported difficulty sleeping, as well as difficulty falling asleep. He stated that he experienced nightmares. He indicated that he went out of his way to avoid certain people. He reported that he had a startled response to unexpected sounds and noises. Following the examination and review of the claims file, the examiner diagnosed generalized anxiety disorder and rule out adjustment disorder with anxious mood. The examiner noted that the Veteran failed to meet the specific criteria for PTSD; however, the examiner explained that the Veteran did exhibit ongoing symptoms of anxiety in the form of social anxiety and heightened arousal and that, as a consequence, he avoided certain social situations. In sum, the examiner stated that the Veteran did exhibit a generalized anxiety disorder, or an adjustment disorder with anxious mood, and explained that either diagnosis was appropriate, as both relate to the Veteran's current level of functioning that was clearly a derivative of his discharge from service and his attempt to function in civilian life, and a service-related condition of anxiety. The Board finds that the evidence of record supports a grant of service connection for the Veteran's anxiety disorder, variously diagnosed. Post-service medical records show that an anxiety disorder was diagnosed in April 2010, and on VA examination in November 2010. Service treatment records demonstrate the Veteran's complaint of feeling down, depressed, or hopeless, upon return from his second tour in Iraq. Moreover, the Veteran is a recipient of the Combat Action Ribbon. Therefore, the incidents resulting in his psychiatric symptoms are not in dispute. 38 U.S.C.A. § 1154(b); see Libertine v. Brown, 9 Vet. App. 521, 524 (1996); see also Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); 38 C.F.R. § 3.304(d). Finally, regarding a nexus between the current anxiety disorder and the Veteran's service, the November 2010 VA examiner found that the Veteran's current level of functioning was clearly a derivative of his discharge from service and his attempt to function in civilian life, and a service-related condition of anxiety. Accordingly, the Board finds that the evidence is at least in equipoise with regard to this claim, and therefore, with application of the benefit of the doubt doctrine, service connection for an anxiety disorder, variously diagnosed, is warranted. ORDER Entitlement to service connection for an anxiety disorder, variously diagnosed, is granted. REMAND Additional development is required before the remaining issues on appeal are decided by the Board. The Veteran contends that his current gastrointestinal disorder, which is manifested by nausea, vomiting, and diarrhea, had its onset during active service. Specifically, during the aforementioned hearing before the Board, he testified that he was provided medication for such symptoms during service. He further asserted that he currently experiences the same symptoms several times a week. Service treatment records include the report of a December 2002 induction physical examination, which is negative for evidence of a gastrointestinal disorder. A February 2005 post-deployment assessment shows the Veteran reported that he experienced diarrhea while serving in southwest Asia. A July 2005 record shows the Veteran reported a history of stomach pain and vomiting for the past five months; the examiner assessed heartburn and prescribed medication. The report of a July 2007 separation physical examination shows the Veteran reported that he had stomach trouble, to include vomiting after eating, and sometimes, vomiting blood. Following separation from active service, VA outpatient treatment records show that the Veteran sought treatment for chronic stomach pain from January 2009 through April 2010. During the course of treatment, the Veteran reported that he had experienced nausea, vomiting, and diarrhea several times a week, since active service. The Veteran underwent a VA examination in July 2009, during which he reported that he had experienced chronic nausea, vomiting, and diarrhea several times a week, since returning from Iraq. Following the examination and review of the claims file, the examiner indicated that a diagnosis could not be provided without further testing. Subsequently, the Veteran underwent a VA abdominal ultrasound in March 2010, and an endoscopy in April 2010, both were assessed as normal studies. The VA clinical records, however, indicate that the Veteran should provide a stool sample and undergo a colonoscopy. Accordingly, a new medical examination and opinion are necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding his service-connected hyperhidrosis, during the aforementioned hearing before the Board, the Veteran asserted that he recently sought treatment for such disability at Accredited Dermatology located in Lacey, New Jersey. However, records of that treatment have not been obtained. As the aforementioned private treatment records are potentially relevant to the claim for an initial compensable rating, further development to obtain these records is in order. 38 C.F.R. § 3.159 (c)(1) (2013). Finally, ongoing VA outpatient treatment records from the VA Medical Center in Brick, New Jersey should also be obtained. 38 C.F.R. § 3.159 (c)(2). In light of these circumstances, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC must undertake appropriate development to obtain all available, outstanding pertinent, treatment records, to include treatment records from Accredited Dermatology in Lacey, New Jersey, from January 2009 to the present, and VA treatment records from the VA Medical Center in Brick, New Jersey from April 2010 to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record, and the Veteran and his representative so notified. 2. Thereafter, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the etiology of any gastrointestinal disorders present during the period of the claim. 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 in conjunction with the examination. Any evaluations, studies, and tests deemed to be necessary should be accomplished, to include a colonoscopy and stool analysis if deemed appropriate. Based upon the examination results and the review of the Veteran's pertinent medical history, the examiner should offer an opinion with respect to each gastrointestinal disorder present during the period of the claim, as to whether there is a 50 percent or better probability that the disorder originated during service or is otherwise etiologically related to service. The examiner should specifically comment on the Veteran's service treatment records, which show complaints of diarrhea while serving in southwest Asia, as well as subsequent complaints of pain and vomiting for five months in July 2005, and complaints of vomiting after eating, to include vomiting blood, on separation examination in July 2007. The examiner also should comment on the Veteran's post-service treatment records, which show continuous complaints of nausea, vomiting, and diarrhea several times a week, since active service. The rationale for all opinions expressed must also be provided. If any required opinion cannot be provided, the examiner should explain why. 3. The RO or the AMC should ensure that the Veteran is provided with adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for the examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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 Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs