Citation Nr: 1332145 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-00 024A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from February 1962 to June 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In connection with this appeal the Veteran was scheduled to testify before the Board in a videoconference hearing at the VA RO in July 2012. The Veteran did not report for the hearing, and failed to present good cause for not appearing. Therefore, his hearing request is deemed to have been withdrawn. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. The issue of entitlement to service connection for residuals of a TBI 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 PTSD is etiologically related to the Veteran's active service. CONCLUSION OF LAW PTSD was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim of entitlement to service connection for PTSD. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2013). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, service connection for PTSD based on an in-service stressor requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link established by medical evidence between the current symptomatology and the claimed in-service stressor. If the stressor claimed by a Veteran 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 PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided 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. 38 C.F.R. § 3.304 (f) (2013). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77. 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 (West 2002); 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 at 54. Analysis The Veteran has asserted that he has PTSD as a result of his experiences while in active service. Specifically, the Veteran has reported that while in active service, he served on the USS Renville, which transported troops to Vietnam. He stated that he would befriend the troops during the trip over, but would never see any of them return, and felt that he was transporting the men to their deaths. The Veteran has also alleged stressors such as having engaged in combat, having gone on patrols, and having been taken prisoner. The Veteran asserts that, while in active service, he feared for his life as a result of enemy fire and war-associated activities. While the Board notes that the Veteran reported some stressors that are not verifiable or cannot be supported by the record, he does present stressors which are related to the fear of hostile military or terrorist activity, as he experienced events and was confronted with circumstances such as enemy fire, which involved the actual or threatened death or serious injury to the Veteran. For example, during his service aboard the USS Renville, this attack transport ship has been shown to have participated in activities involving the transport of Marines onto the shore at Chu Lai, Vietnam by means of assault boats, which would have placed its crew in close proximity to hostile enemy action. Therefore, the Board will concede the stressors related to the Veteran's fear of hostile military or terrorist activity. The Veteran's service medical records are negative for any treatment for or a diagnosis of a psychiatric disability while the Veteran was in active service. A review of the post-service medical evidence of record shows that the Veteran commenced treatment in December 2006 and has since that time been diagnosed with PTSD. The Veteran began treatment at VA Medical Center (VAMC) in December 2006 for complaints of years-long depression, anhedonia, hopelessness, worthlessness, recurrent intrusive memories, emotional numbness, flashbacks, isolative behavior, hypervigilance, outbursts of anger, anxiety attacks, and sporadic suicidal ideation. The Veteran also stated that he felt guilty about his son being addicted to drugs and about not being the bread winner in the family. He stated that he experienced combat while on foot patrol and in airborne battles. He also stated that his ship transported troops to Vietnam, but never returned the men home to the United States, and that he felt guilty about surviving while many men have not. The Veteran was already on Zoloft, which the physician recommended continuing and increasing. The examiner diagnosed the Veteran with PTSD, rule out major depressive disorder and rule out generalized anxiety disorder. The examiner stated that it was not clear whether the Veteran experienced complicated PTSD or separate co-morbidities. The Veteran's diagnosis of chronic PTSD with associated depression and anxiety was confirmed in April 2008. The physician noted that the Veteran used to drink heavily and then quit in 1975, and that he reported drinking after he separated from service in order to ease his anxiety. The physician stated that the Veteran's symptoms became particularly troublesome after the pace of his work slowed down, and the Veteran had more time to think about his experiences during the war. The physician increased the Veteran's medication and recommended group therapy in addition to the individual therapy the Veteran had been receiving. In March 2010, the Veteran's diagnosis of PTSD was once again confirmed. The physician noted that the Veteran's depression usually occurred during March and April, around the anniversary of the traumatic events which occurred in Vietnam. The physician stated that the Veteran's PTSD was combat-related and increased the Veteran's medication. The Veteran's claims file contains a letter from two of his treating VAMC psychologists. The letter stated that the Veteran was diagnosed with PTSD by a VA psychologist in April 2008 and that his individual therapist, group therapist, and psychiatrist have all corroborated the combat-related PTSD diagnosis. The letter stated that the Veteran's symptoms have worsened over time, causing him increased difficulty, and that the Veteran continued to experience nightmares, emotional numbing, hyperarousal, startle reflex, depressed mood, high levels of irritability, impaired focus and concentration, impaired short term memory, and low motivation. The letter stated that because the Veteran was very bright, and guarded when it came to the PTSD diagnosis, he masked the severity of his symptoms when in the presence of others, which made his impairment not readily apparent to the outside observer. The Board acknowledges that some of the Veteran's stressors have not been confirmed. However, as noted previously, the Board has determined that at least one of the Veteran's stressors of being on board a ship that was involved in the transport of Marines to the beaches of Chu Lai would involve being in sufficient proximity to the shore to be in fear of hostile military activity. Moreover, this stressor was in part the basis of a diagnosis of PTSD in December 2006, which was later confirmed by a VA psychiatrist in April 2008 and a VA psychologist in December 2010. Therefore, giving the Veteran the benefit of the doubt, the Board finds there is sufficient evidence of a diagnosis by an appropriate VA examiner based on the Veteran's exposure to hostile enemy activity during Vietnam to warrant entitlement to service connection for this disability. ORDER Entitlement to service connection for PTSD is granted. REMAND The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for residuals of a TBI is decided. The Veteran has reported that he experiences TBI-related symptoms, such as headaches and trouble with sleep, stemming from a 1962 in-service injury. The Veteran's service medical records show that he sustained a head injury in August 1962 while in active service. He reported to sick call and stated that he tripped and fell, struck his head, and suffered a head injury as a result. The service medical records show that the Veteran responded to symptomatic therapy and became asymptomatic within two days. He was released to active duty two days after the accident. It is noted that the service medical records are silent for any TBI-related symptoms or issues after August 1962. The Veteran did not experience any major problems after the accident, and he did not report any TBI-related issues to his superiors or seek medical treatment for them. The Veteran reported that problems only appeared later in his life, when he started experiencing headaches and trouble sleeping. The Veteran was afforded a VA examination in February 2011. The examiner noted that the Veteran reported that he had a concussion in August 1962 while in active service. The examiner noted that the Veteran's head injury had stabilized and that any TBI-related conditions have not had significant effect on the Veteran's daily activities. The examiner stated that there was no evidence of a TBI-related disability. However, the examiner reported that a computerized tomography (CT) of the Veteran's brain was performed in November 2010 at the VAMC in Salt Lake City, Utah. The examiner noted that the CT scan showed mild supra and infratentorial atrophy, mild chronic subcortical microvascular white matter disease, a prior infract in the right frontal lobe, and remote lacunar infractions in the head of right caudate nucleus and left frontal white matter. It showed no acute intracranial process and, specifically, no acute intracranial hemorrhage. The examiner did not elaborate on what the results meant, why were they clinically normal or abnormal, why they were not indicative of TBI residuals, or what they were indicative of. The Board cannot substitute its own judgment for that of a medical professional, and cannot interpret the CT scan results. Therefore, the Board finds that the Veteran's claims file should be returned to the VA examiner who provided the February 2011 medical opinion for an addendum opinion which adequately addresses the November 2010 CT scan findings, to include the nature and etiology of any neural abnormalities found. Additionally, current treatment records should be obtained prior to a decision being rendered in this case. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify and provide authorization for VA to obtain medical records from VA and non-VA health care providers for the treatment of for TBI. 2. Then, obtain all pertinent VA medical records, not yet associated with the claims file, and non-VA medical records that are identified by the Veteran. Associate those records with the file. If any medical records are not available, the applicable provisions of 38 C.F.R. § 3.159 must be followed. 3. Thereafter, regardless of whether additional documents are obtained, schedule the Veteran for a VA examination for his TBI. The Veteran's claims file should be forwarded to the VA examiner who performed the February 2011 VA examination for a complete review of the claims file and an addendum opinion. Based on a review of the record, the examiner should provide an addendum opinion as to whether there is a 50 percent or better probability that the Veteran's headaches and loss of sleep are etiologically related to his active service, to specifically include the TBI sustained therein. In providing the opinion, the examiner should interpret and address the November 2010 CT scan results. If the February 2011 VA examiner is not available, the claims files should be provided to and reviewed by another physician with sufficient expertise to provide the required opinions with the supporting rationale. Another VA examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 4. The RO should review the claims folder to ensure that all of the remand directives have been accomplished, and should take any additional steps necessary to fully comply with the Board's remand. 5. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond to it. The case should then be returned to the Board, if in order, for further review. 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). ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013). Department of Veterans Affairs