Citation Nr: 1332134 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 13-19 425 ) 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 major depressive disorder or an adjustment disorder. REPRESENTATION Appellant represented by: Agent Allen Gumpenberger ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from January 1968 to January 1971, including service in the Republic of Vietnam from February 1970 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In deciding this appeal, the Board has reviewed the Veteran's electronic ("Virtual VA") file, in addition to his physical claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are additional treatment records among the Veteran's paperless records in the Virtual VA system, from the Jacksonville VA Outpatient Clinic (VAOPC) and Gainesville VA Medical Center (VAMC) covering treatment from February 2009 to June 2013. There are no records for this Veteran in VBMS. The Board has recharacterized the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) to the broader issue of entitlement to service connection for an acquired psychiatric disability, as is reflected on the cover page. The private medical evidence submitted in support of the claim and the VA treatment records clearly raised the issue of the nature of the appellant's current mental condition with additional diagnoses for major depressive disorder and an adjustment disorder, respectively . Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Therefore the Board will consider service connection for all mental health diagnoses of record. The issue of service connection for an acquired psychiatric disorder, to include major depressive disorder or an adjustment disorder, 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. FINDING OF FACT The Veteran has a current diagnosis of PTSD, which is related to verified in-service stressors. CONCLUSION OF LAW The criteria for the establishment of entitlement to service connection for PTSD, have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.326(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Procedural Duties, the Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159 and 3.326(a). In the decision below, the Board grants service connection for PTSD. In light of the Board's favorable decision on the Veteran's claim, the Board finds that all notification and development action needed to fairly adjudicate this appeal have been accomplished. The Merits of the Claim The Veteran seeks service connection for PTSD based upon his service in the Republic of Vietnam. Specifically, he contends that his current psychiatric disabilities are due to his combat experience in Vietnam and witnessing a good friend die in a firefight. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the criteria for service connection have been met and the appeal will be allowed. In order to establish entitlement to service connection for any disability on a direct basis, the record must contain (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD has similar three part test, with specific requirements: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Id.; 38 C.F.R. § 4.125(a). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon the circumstances of the case. VA has provided for specific types of cases where lay evidence alone may be sufficient to describe the stressor and further corroborating evidence will not be required. Corroborating evidence is not required in cases where (1) PTSD is diagnosed in service; (2) the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) the stressor is related to the Veteran's fear of hostile military or terrorist activity; and (4) the evidence establishes that the Veteran was a prisoner-of-war and the stressor is related to that prisoner-of-war experience. 38 C.F.R. § 3.304(f)(1), (f)(2), (f)(3), (f)(4). In any of the above situations, the Veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required providing that such testimony is found to be consistent with the circumstances, conditions, or hardships of service and there is no clear and convincing evidence to the contrary. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1), (f)(2), (f)(4). Although the September 2010 VA examiner failed to diagnose PTSD, in the present case there are private medical records reflecting a diagnosis. D.P.L., licensed psychologist with Baptist Behavioral Health, diagnosed the Veteran with PTSD in February 2010, addressing each criteria required by the DSM-IV. McLendon v. Nicholson, 20 Vet.App. 79 (2006). In her diagnosis, she addressed each of the five axes required for consideration under the DSM-IV; discussing the criteria of: exposure to a traumatic event, persistent reexperiencing of that traumatic event, persistent avoidance of stimuli associated with the trauma, persistent symptoms of increased arousal not present before the trauma, duration of the disturbance, and whether the disturbance causes clinically significant distress or impairment of social or occupational functioning. Dr. P.L. further diagnosed major depressive disorder. While it is unclear whether Dr. P.L. reviewed the claims, she took a detailed history consistent with the information in the claims file as to the Veteran's in-service combat experience and was sufficiently informed about the Veteran. The probative value of a medical opinion comes from when there is a factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). In this case Dr. P.L. provided a detailed assessment which would otherwise conform with the initial compensation and pension examination requirements, the Board finds that her PTSD diagnosis is sufficient in this case. The remaining questions are whether there is evidence of an in-service stressor, and medical evidence of a nexus or relationship between the current symptoms and in-service stressor. The Board will address these remaining two elements of service connection in turn. The Veteran is claiming that he has acquired PTSD as a result of witnessing K.K.'s death on October 03, 1970 in the Quang Tin province. The Vietnam Veteran Memorial Wall website confirms that K.K. indeed died on October 03, 1970 in the Quang Tin province, and that had served with the 116th Aviation Company. The Veteran's personnel file further verifies his military occupational specialty as a Door Gunner with the 116th Aviation Company from September 1970 to December 1970, encompassing K. K.'s date of death in October 1970; and receipt of the Air Medal with "V device. The Veteran's military occupational specialty and receipt of this decoration are definitive evidence of personal participation in combat. M21-1MR III.iv.4.H.29.c. Therefore, the Veteran's stressor are related to combat under 38 C.F.R. § 3.304(f)(2), and the Board deems that his stressors are confirmed and related to service by his lay testimony alone. 38 U.S.C.A. § 1154(b). The final element for service connection of PTSD is medical evidence of a nexus between the current symptoms and the confirmed stressor. The Veteran offered a detailed description to Dr. P.L. of witnessing the death of K.K., good friend, in a firefight on October 03, 1970 while acting as Door Gunners in the same helicopter. Dr. P.L.'s February 2010 diagnoses and examination reports specifically rely on the Veteran's reported stressor, which relates combat, to substantiate a diagnosis of PTSD. The Veteran's description of firefights, small arms fire, and RPGs is also consistent with his service in the Republic of Vietnam. The records does not contain any clear and convincing evidence to the contrary. As there is medical diagnosis of PTSD related to the claimed in-service stressors, namely combat and witnessing the death of K.K. in a firefight, the Board concludes that the evidence supports the grant of service connection for PTSD. ORDER Service Connection for PTSD is granted. REMAND The Board notes that the Veteran also has verified diagnoses for major depressive disorder by Dr. P.L. in February 2010 at Baptist Behavioral Health, and an adjustment disorder by Dr. J.B.G. in May 2013 at the Jacksonville VAOPC. Given that the Board is expanding the Veteran's March 2010 claim for service connection of PTSD to include claims for service connection of these diagnoses under Clemons as explained above, these claims require further development. While the Veteran attended a VA examination in September 2010; that examiner made no diagnosis for any psychiatric condition, and therefore offered no medical nexus opinion. However, as noted above the Veteran does have several psychiatric diagnoses. The Board is granting service connection for PTSD, but in order to consider service connection for the diagnoses of depression and an adjustment disorder a medical nexus opinion is necessary. If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2. Further, once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Board must remand the issue of service connection for an acquired psychiatric condition, to include major depressive disorder or an adjustment disorder, to ascertain the etiology of the Veteran's currently diagnosed psychiatric conditions. Finally, the Veteran appears to routinely receive healthcare through the VA Healthcare System at the Jacksonville VAOPC and Gainesville VAMC. The most recent VA treatment records in Virtual VA are from June 2013. On remand, the AMC should obtain any outstanding VA treatment records. As the Veteran also receives private mental health care at Baptist Behavioral Health, the RO/AMC should also give the Veteran a further opportunity to authorize the release of any outstanding private treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and ask him to authorize the release of any outstanding mental health care records, including from Baptist Behavioral Health. The RO/AMC should then obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. The RO/AMC should also specifically request updated treatment records from the Jacksonville VAOPC and Gainesville VAMC dated from June 2013 to the present and associate them with the claims file. 2. After any outstanding treatment records have been obtained, the RO should have the Veteran scheduled for a VA psychiatric examination to determine the nature and likely etiology of the Veteran's currently diagnosed psychiatric disorders. All indicated tests must be accomplished. The claims file must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this receipt and review in any report generated as a result of this remand. The examiner is requested to provide an opinion as to whether the Veteran has any other psychiatric conditions, other than PTSD, including but not limited to depression or an adjustment disorder, and: a. whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed acquired psychiatric disability, including major depression or an adjustment disorder, is related to the Veteran's active service or combat experience in Vietnam; and b. whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed acquired psychiatric disability, including major depression or an adjustment disorder, is caused by or aggravated by the Veteran's service connected PTSD. A thorough rationale, to include reference to the relevant evidence of record as appropriate, should be provided for all opinions expressed. If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. 3. The RO shall then take such additional development action as it deems proper with respect to the claim. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs