Citation Nr: 1334902 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-00 348A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for bronchial asthma. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for a psychiatric disorder to include post traumatic stress disorder (PTSD), anxiety disorder, and depression. REPRESENTATION Appellant represented by: John Berry, Attorney at Law ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to March 1989. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2008 by which the Regional Office (RO) in Philadelphia, Pennsylvania, denied service connection for PTSD, depression, and sleep apnea. Service connection was granted for bronchial asthma and a 30 percent rating was assigned. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal of service connection for sleep apnea and entitlement to a higher initial rating for bronchial asthma are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's current anxiety disorder not otherwise specified is related to events in active service. 2. The Veteran does not have a diagnosis of depression or PTSD in accordance with the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for the establishment of service connection for anxiety disorder not otherwise specified have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for the establishment of service connection for depression and PTSD have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As the Board is granting the claim for service connection for an anxiety disorder not otherwise specified, this claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367- 68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Regarding the claims for service connection for PTSD and depression, the VCAA duty to notify was satisfied by way of a letters sent to the Veteran in June 2007, July 2007, October 2007, March 2008, prior to the initial adjudication of the claims, and in July 2008 and March 2010. The letters fully addressed all three notice elements and informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. The letters provided notice of the information and evidence needed to substantiate a disability rating and an effective date. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims. Therefore, the Board finds the duty to notify provisions of VCAA have been fulfilled. VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the Veteran. The RO has obtained all pertinent treatment records identified by the Veteran. All available service treatment records are associated with the record. VA treatment records dated from 2002 to 2012 are associated with the claims folder. The RO afforded the Veteran a VA psychiatric examination in September 2012 in order to obtain medical evidence of the nature and etiology of the claimed psychiatric disability. The examination was adequate. The evaluation was performed by a medical professional based on review of claims file and a solicitation of history and symptomatology from the Veteran, and examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The VA examination findings are accurate and fully descriptive. The VA examiner provided an opinion as to the current psychiatric diagnosis and if any current disorder was related to active service. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Legal Authority Service connection may be granted for disability or injury 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). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2013); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Service connection requires competent evidence showing, (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, a psychoses is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection for PTSD requires the presence of three elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in- service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2013). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a). 38 C.F.R. § 4.125(a) refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV) as the source of criteria for the diagnosis of claimed psychiatric disorders. DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, 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)(1) (2013). If the evidence establishes 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 U.S.C.A § 1154(b); 38 C.F.R. § 3.304(f)(2) (2013). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, 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)(3) (2013). "Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. If, however, the Veteran did not serve in combat, or if the claimed stressor is not related to combat or the fear of hostile military activity, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). Furthermore, an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). 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. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Analysis The Board notes that the RO adjudicated the matter on appeal solely as a claim for service connection for PTSD and depression. However, as reflected on the title page, consistent with case law, the Board considers the appeal as encompassing not just PTSD, but other diagnosed psychiatric disorders reflected in the record to include anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a claim for service connection for one psychiatric disorder includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Thus, consistent with Clemons, and the current record, the Board has recharacterized the claim on appeal as reflected on the title page, and will consider all claimed psychiatric disorders and current diagnoses as shown by the evidence of record. The Veteran contends that he has a psychiatric disorder due to his experiences in service. The Veteran stated that during active service, he was stationed in Germany when a disco in Berlin was bombed by terrorists. The Veteran also reported that he heard of a soldier being kidnapped and decapitated. He stated that during service, he became aware of a hostile threat to military personnel. He reported that every Friday, there would be a security briefing and they were told of locations and venues that the military personnel were instructed not to go and they were told to stay in groups. The Veteran indicated that on some occasions, they were told to stay on post. See the September 2012 VA psychiatric examination report. The Veteran also reported an incident in service where he believed he was being followed by three men. The Veteran had been alone and walking at night and he felt threatened and he believed their intent was to kidnap him or harm him. The Veteran indicated that he responded to the situation with anxiety. The Veteran also reported being exposed to chronic racism and racial harassment while stationed in Germany and at Fort Bragg. See the September 2012 VA psychiatric examination report. The VA examination report also notes that the Veteran had suspiciousness and a belief of threat upon separation from service because he was told that he needed to be attentive of his security because he had classified information in service. The Veteran had a fear of the KGB. The record shows that the Veteran bought a gun upon service separation, fatally shot a man, and was convicted of third degree murder. According to a news article, the Veteran bought the gun because he feared the KGB. See the September 2012 VA psychiatric examination report. The VA examiner who conducted the September 2012 VA psychiatric examination diagnosed anxiety disorder not otherwise specified. The VA examiner stated that the Veteran did not experience a clear identifiable thereat when he was stationed in Germany but he experienced an unpredictable threat of terror from hostile parties. The VA examiner indicated that these experiences met the criteria for a traumatic stressor, which was a chronic threat of danger, and racist harassment during his military service. The VA examiner also stated that the Veteran had symptoms in the realm of an anxiety disorder which has required psychiatric treatment in the past four years. The VA examiner stated that the symptoms which supports the DSM-IV diagnosis of anxiety disorder not otherwise specified are hypervigilence with suspiciousness, restricted range of affect, chronic irritability, emotional detachment, and avoidance including social avoidance. The Veteran also reported having somatic symptoms including sleep difficulty, low energy, and concentration difficulties. The VA examiner opined that the anxiety disorder not otherwise specified was related to the Veteran's military service including the traumatic stressors in service and the racial harassment, specifically the stressor of serving in Germany in the 1980's when there was a terrorist bombing, and this stressor contributed to the anxiety disorder. The VA examiner stated that the Veteran's heightened perception of threat was reinforced by exposure to racist acts and racial harassment. The examiner opined that it was more likely than not that the these experiences contributed to a generalized view that the world and other people represent a danger and threat and this is manifested in the symptoms of the current anxiety disorder not otherwise specified. The Board notes that the Veteran is competent to describe firsthand event such as a threat and his reaction to the event such as an observable symptom such as fear. See Falzone, supra. The VA examiner opined that the Veteran's fears while stationed in Germany were reasonable. The examiner noted that although the Veteran was not actually attacked in service and there was no imminent threat to his physical safety and integrity, he did have a reasonable fear of threat to his safety in the circumstance where he reported that he thought he was being followed by a group of men. The examiner also stated that due to the racism and racial harassment, the Veteran felt in danger during his service in Fort Bragg. Service records show that the Veteran was stationed in Germany from January 1986 to June 1988. He was stationed at Fort Bragg from October 1988 to March 1989 and was assigned to HQ 9th Psy Ops. This evidence supports the Veteran's statements concerning the various stressor events in service in Germany and Fort Bragg. The VA examination report and medical opinion dated in September 2012 and the service records weigh in favor of the claim. There is evidence which weighs against the claim. The service treatment records do not document complaints, treatment, or diagnosis of an anxiety disorder not otherwise specified. The record shows that anxiety disorder not otherwise specified was first diagnosed many years after service separation in March 1989. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Based on a careful review of the entire record, the Board finds the evidence is in equipoise as to whether the current anxiety disorder not otherwise specified is related to events in the Veteran's period of active service. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In resolving all reasonable doubt in the Veteran's favor, service connection for anxiety disorder not otherwise specified is warranted. The Board finds that there is no competent evidence of a current diagnosis of depression or PTSD in accordance with the provisions of DSM-IV. The Veteran asserts that he has a current diagnosis of PTSD and depression. However, he has not submitted any medical evidence of current diagnoses of these disorders. The Veteran's own implied assertions that he had PTSD or a depressive disorder due to events in service are afforded limited if no probative weight in the absence of a showing that the Veteran has the expertise to render opinions about medical matters. The Veteran, as a lay person, is competent to describe observable symptoms such as feeling sad or depressed or anxious. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra; as to the specific issue in this case, an opinion as to a psychiatric diagnosis in accordance with DSM-IV, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. Thus, the Board finds there is no competent evidence of a current diagnosis of PTSD or a depressive disorder. The weight of the competent and credible evidence establishes that the Veteran does not have a diagnosis of PTSD or a depressive disorder in accordance with DSM-IV. The Veteran was afforded a VA psychiatric examination in September 2012. The VA examiner concluded that the Veteran did not meet the DSM-IV criteria for PTSD or a major depressive disorder and his current DSM-IV diagnosis was anxiety disorder not otherwise specified. The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer; supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). The preponderance of the evidence establishes that the Veteran does not have a current diagnosis of PTSD or a depressive disorder. Accordingly, on this record, service connection for PTSD and depression is not warranted. As the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. Gilbert, 1 Vet. App. 49. ORDER Service connection for an anxiety disorder not otherwise specified is granted. Service connection for PTSD and depression is denied. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) specifically provides that the duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The Veteran was afforded a VA examination in August 2012 in order to determine the nature and etiology of the claimed sleep apnea and whether such disorder was incurred in or related to active service. The examiner opined that there was no causal relationship between the sleep apnea and active service. However, the Board notes that the Veteran also argued that the sleep apnea may be caused or aggravated by a psychiatric disorder. See the Veteran's statements dated in July 2007 and July 2008. Service connection has been established for anxiety disorder not otherwise specified. The Court has held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). See also 38 C.F.R. § 3.310 (2013). The Board finds that the RO/AMC should ask the examiner who conducted the August 2012 VA examination or a suitable replacement to prepare an addendum and provide an opinion as to whether the sleep apnea has been caused or aggravated by the service-connected anxiety disorder or bronchial asthma. Review of the record reveals that the results of the VA August 2012 pulmonary function tests are not of record. The pulmonary function test results of record are not reported in the "percentage predicted" which is necessary for rating the service-connected bronchial asthma under the pertinent rating criteria. The July 2013 VA addendum opinion indicates that the pulmonary function lab should be contacted if actual numbers are needed for the rating, these numbers are not entered into the CPRS computer, and the numbers should have been faxed to the RO but it does not appear to have happened in this case. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). The record shows that the Veteran receives treatment for the bronchial asthma from the VA Healthcare System. The RO should obtain the VA treatment records for treatment of the bronchial asthma July 2012. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). Accordingly, the case is REMANDED for the following action: 1. Obtain any pertinent VA treatment records showing treatment for the bronchial asthma from the VA Healthcare System dated from July 2012 to the present. 2. Contact the VA pulmonary lab and obtain a copy of the VA August 2012 pulmonary function test results reported in percentage predicted for FVC and FEV-1. 3. Contact and ask the VA examiner who conducted the August 2012 VA pulmonary examination (or if he or she is no longer available, a suitable replacement) to prepare an addendum to the medical opinion that addresses whether it is at least as likely as not (50 percent probability or more) that the sleep apnea is proximately due to or aggravated by the service-connected bronchial asthma and/or anxiety disorder. If the examiner finds that the sleep apnea is aggravated by a service-connected disability, the examiner should indicate the degree of disability due to the aggravation. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the RO should schedule the Veteran for such an examination. The VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should provide a rationale for all conclusions. If the VA examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, the examiner should indicate this in the report. 4. After completing all indicated development, readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be 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). ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs