Citation Nr: 1331477 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-27 538 ) 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 an acquired psychiatric disorder, to include adjustment disorder and anxiety disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to April 1971. This appeal to the Board of Veterans' Appeals (Board) is from a December 2006 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which reopened the Veteran's claim for service connection for an acquired psychiatric disorder and then denied the claim on its merits. In April 2011, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The Board notes that additional pertinent evidence was submitted into the record following the certification of this appeal to the Board. To date, these records have not been reviewed by the Agency of Original Jurisdiction (AOJ), and no waiver from the Veteran was received. However, the Board finds that the Veteran is not prejudiced by this lack of review by the AOJ, as the PTSD claim is being granted and as, upon remand, the AOJ will be able to review these records in the first instance during their readjudication of the acquired psychiatric disorder issue. Thus, a waiver for this evidence is not necessary at this time. 38 C.F.R. §§ 20.800, 20.1304 (2013). The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision and remand, along with his paper claims file. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include adjustment disorder and anxiety disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. The Veteran did not engage in combat during service. 2. The record contains a PTSD diagnosis made in accordance with the Diagnostic and Statistical Manual of Mental Disorders (4th Ed.) (DSM-IV). 3. The file contains credible supporting evidence of a reported in-service stressor; therefore, there is at least one confirmed stressor of record. 4. The Veteran's PTSD diagnosis has been associated by competent medical opinions to a credible stressor associated with the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. II. Analysis Three general requirements for establishing service connection for PTSD are outlined in 38 C.F.R. § 3.304(f). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013), (stating that if a diagnoses of a mental disorder does not conform to DSM-IV or is not supported by findings in the examination report, the rating agency shall return the report to substantiate the diagnosis); 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). According to the DSM-IV criteria, a diagnosis of PTSD requires that a Veteran has been exposed to a traumatic event, and that he experiences a number of specified current symptoms. The traumatic event, or stressor, involves having experienced, witnessed, or being confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. In addition, the response must involve intense feelings of fear, hopelessness, or horror. See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). In Cohen v. Brown, 10 Vet. App. 128 (1997), the United States Court of Appeals for Veterans Claims (Court) held that a diagnosis of PTSD is presumably in accordance with the DSM-IV criteria, both insofar as the adequacy and sufficiency of the claimed stressor. Where VA determines that a Veteran did not engage in combat with the enemy, or that the Veteran did engage in combat with the enemy but the claimed stressor is unrelated to such combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the reported stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, the record must contain credible supporting evidence that corroborates a Veteran's testimony or statements. Cohen, 10 Vet. App. at 146-47. This credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). The available sources for corroboration of a claimed stressor are not necessarily limited to service records (as previously required prior to the adoption of 38 C.F.R. § 3.304(f)), but may also include other sources of evidence. See Cohen, 10 Vet. App. at 143, citing to M21-1, Part VI, para 7.46(f) (Sept. 21, 1992); M21-1, Subch. XII, para 50.45(d) (1989). Moreover, corroboration does not require there be corroboration of every detail, including a Veteran's personal participation in the identifying process. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997); Pentecost v. Principi, 16 Vet. App. 124 (2002). With regard to the first element, there is competent evidence establishing that the PTSD has been diagnosed during the claim period. At the November 2011 VA psychiatric examination, the VA psychologist found that the Veteran had a current DSM-IV diagnosis of PTSD. This diagnosis was provided following a review of the claims file and a physical examination of the Veteran. The claims file also contains several PTSD diagnoses in his treatment records. This element has been satisfied. Pertinent to the second element, while the evidence does not show the Veteran engaged in combat with the enemy forces, the record contains credible supporting evidence that a reported in-service stressor occurred. The Veteran asserts that he developed PTSD due to a traumatic experience while he was stationed in Guam during the Vietnam War. Specifically, the Veteran's stressor is that he witnessed a plane crash and explode while attempting to take off. The next day, while the Veteran was securing the perimeter, he saw the bodies of the crewmen. The Veteran asserts that witnessing this explosion is the cause of his currently diagnosed PTSD. With respect to the credible supporting evidence of an in-service stressor, a January 1970 U.S. Air Force Incident/Accident report confirms the plane crash and the deaths of the crew, as described by the Veteran. This element has been satisfied. With regard to the third element, the evidence also establishes a link between the currently diagnosed PTSD and a reported service-related stressor. Specifically, the Veteran was afforded a VA psychiatric examination in November 2011. At the examination, the Veteran described, in pertinent part, the aforementioned plane crash stressor. Following a review of the claims file and a physical examination of the Veteran, the November 2011 VA examining psychologist determined that it was at least as likely as not that the Veteran's claimed stressors, to include the plane crash stressor, are adequate to support a diagnosis of PTSD. The examiner indicated that there was no evidence of any pre- or post-service trauma that would better explain the Veteran's current PTSD symptom presentation. Therefore, the examiner found that it was at least as likely as not that the Veteran's PTSD was related to his conceded stressors, to include, in pertinent part, his in-service stressor of witnessing a runway accident at the Air Force Base. Additionally, a letter from the Veteran's treating therapist, K.V., dated in August 2010, confirms a diagnosis of PTSD and specifically attributes the Veteran's PTSD to his military service based on his self-reported stressors and confirmed by a January 1970 U.S. Air Force Accident/Incident report. This element has also been satisfied. The Board notes that the Veteran was provided a VA psychiatric examination in February 2009 to determine whether his PTSD was due to his military experience. At the time of that examination, the VA examiner noted that the Veteran's symptoms fit the DSM-IV criteria for anxiety disorder but not for PTSD. The examiner then opined that the Veteran did not have PTSD due to or as a result of his witnessing the accident involving the plane crash because the Veteran did not have a current diagnosis of PTSD. As stated above, the Board finds that the Veteran has a current PTSD diagnosis. The requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability present at any time since the filing of the claim, even if no disability is present at the time of the claim's adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). As the Veteran was diagnosed with PTSD subsequent to the February 2009 VA examination, this medical opinion is therefore based on factual inaccuracies. It does not provide contrary evidence to the PTSD claim. Thus, the Board finds that the elements of 38 C.F.R. § 3.304(f) have been met. Service connection for PTSD is warranted and the claim is granted. ORDER Service connection for PTSD is granted. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim for acquired psychiatric disorder other than PTSD, to include adjustment disorder and anxiety disorder, can be properly adjudicated. Initially, as the Veteran is now service-connected for PTSD, the Board finds that the theory of secondary service connection is raised by the record for the remaining disorders (i.e., whether the service-connected PTSD caused or aggravated the adjustment disorder and/or anxiety disorder). 38 C.F.R. § 3.310 (2013). In this regard, the Veteran has not been provided with a proper notice letter. Specifically, the Veteran has not been informed of the requirements for establishing secondary service connection. The Veteran must be provided with this requisite notice. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). Additionally, the Board finds that a VA addendum medical opinion is necessary before the remaining claim can be decided on the merits. The Veteran was afforded a VA psychiatric examination and medical opinion in November 2011. The VA examiner, in pertinent part, diagnosed the Veteran with adjustment disorder, and provided a negative nexus opinion for this disorder. However, the examiner did not provide any rationale for his negative nexus opinion. A medical examination report must contain not only clear conclusions, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the November 2011 VA examiner did not provide a medical nexus opinion concerning the Veteran's currently diagnosed anxiety disorder, as requested in the Board's remand. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, as the Veteran is now service-connected for PTSD in this decision, a medical opinion concerning secondary service connection should also be obtained. 38 C.F.R. § 3.310. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). Finally, the Veteran's most recent, pertinent outpatient treatment records from the VA Medical Center (VAMC) in Tampa, Florida (to include the Orlando, Florida, Vet Center), are dated since October 2006. Upon remand, all pertinent VA records since this date must be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) )(West 2002); Loving v. Nicholson, 19 Vet. App. 96, 100-03 (2005). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran another VCAA letter pertaining to his acquired psychiatric disorder other than PTSD claim, to include information regarding establishing secondary service connection under 38 C.F.R. § 3.310. 2. Obtain all pertinent VA outpatient treatment records from the Tampa, Florida, VAMC (to include the Orlando, Florida, Vet Center) dated since October 2006 that have not been secured for inclusion in the record. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no new records are associated with the claims file, a written determination should be included in the claims file. 3. The RO/AMC shall ask the November 2011 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA psychiatric examination with an appropriate expert to determine the etiology of his currently diagnosed adjustment disorder and anxiety disorder. The VA examiner should thoroughly review the Veteran's VA claims file, to include his service treatment records (STRs), as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a) Is it at least as likely as not that the currently diagnosed adjustment disorder had its onset in or is otherwise related to active military service, to include the Veteran's verified airplane crash stressor? b) Is it at least as likely as not that the currently diagnosed anxiety disorder had its onset in or is otherwise related to active military service, to include the Veteran's verified airplane crash stressor? c) Is it at least as likely as not that the currently diagnosed adjustment disorder is caused by or due to the service-connected PTSD? d) Is it at least as likely as not that the currently diagnosed anxiety disorder is caused by or due to the service-connected PTSD? e) Is it at least as likely as not that the currently diagnosed adjustment disorder is aggravated beyond the normal progress of the disorder by the service-connected PTSD? f) Is it at least as likely as not that the currently diagnosed anxiety disorder is aggravated beyond the normal progress of the disorder by the service-connected PTSD? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements regarding the progression of the disorders, and comment on whether the Veteran's statements make sense from a medical point of view. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After the above action has been completed, readjudicate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include an adjustment disorder and anxiety disorder. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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 or by 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. 2013). ______________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs