Citation Nr: 1336989 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-34 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. 3. Entitlement to service connection for residuals of traumatic brain injury (TBI). 4. Entitlement to medical care under 38 U.S.C.A. § 1702 for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Senior Counsel INTRODUCTION The Veteran had active service from June 1993 to July 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the above claims. While the Board notes that the claim for medical care under 38 U.S.C.A. § 1702 for a psychiatric disorder was not specifically addressed at the Veteran's hearing before the undersigned Veterans Law Judge in July 2012, given the fact that it was addressed in the May 2010 statement of the case and the Veteran's substantive appeal, it continues to be a matter for current appellate review. Finally, as a result of the Board's decision to grant service connection for PTSD but remand the issue of entitlement to service connection for a psychiatric disorder other than PTSD, the Board has split the issue of entitlement to service connection for an acquired psychiatric disorder into two issues to better facilitate appellate consideration of this matter. The issues of entitlement to an acquired psychiatric disorder, other than PTSD, and entitlement to medical care under 38 U.S.C.A. § 1702 for an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. PTSD has been related by competent medical evidence to incidents that occurred during active military service. 2. Residuals of TBI, to include recurring headaches, have been related to active military service. CONCLUSIONS OF LAW 1. PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2013). 2. Residuals of TBI, to include recurring headaches, were incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, and a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Quartuccio v. Principi, 16Vet. App. 183 (2002). The Board finds that service connection is warranted for PTSD and residuals of TBI. Therefore, no further discussion of VA's duties to notify and assist is warranted for these claims as any deficiency has been rendered moot. II. Analysis Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be demonstrated either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 (Fed. Cir. 2004); Hansen v. Principi, 16 Vet. App. 110 (2002); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A disability also may be service connected if the evidence of record reveals that the Veteran currently has a disability that was shown to be chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter, provided it is recognized as chronic under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b) (2013). Since one of the subject disorders has been recognized as possibly neurological in origin and therefore considered a disease of the nervous system under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is for application in the instant case as to the claim for service connection for residuals of TBI. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disabilities diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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) and 38 C.F.R. § 4.125 (2013) (requiring PTSD diagnoses to conform to the criteria in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). If a PTSD claim is based on Military Sexual Trauma (MST) or personal assault in service, evidence from sources other than the Veteran's records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(3). Additionally, evidence of behavior changes following the claimed assault is relevant evidence that may be found in the mentioned sources. Examples of behavior changes that may constitute credible evidence of a stressor include a request for a transfer to another military duty assignment and substance abuse. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (service connection presupposes a current diagnosis of the disability claimed). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, lay evidence can be considered competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (such as a broken leg), (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 (Fed. Cir. 2007). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2) (2013). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination medical in nature and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The Veteran contends that his PTSD and residuals of brain injury both arise out of the conduct of a petty officer who served with the Veteran while on board the USS Carl Vinson in 1994. More specifically, the Veteran alleges that the petty officer harassed and assaulted the Veteran on repeated occasions during the time the Veteran had to share the same quarters with this service member on board the ship, and that on one occasion, when the Veteran was in the process of going down a ladder, this individual stepped on the Veteran hands, causing the Veteran to fall a significant distance and sustain injury to various parts of his body, including his head. In this regard, service treatment records do not reflect any specific injuries to the head that purportedly arose out of a fall during service, with the exception of an injury to the Veteran's elbow in 1993. However, the Veteran has offered credible testimony about the circumstances of his service, including his experiences with the petty officer and fall, and his change in assignment while on board the ship is evidence that the Veteran did have the alleged problems on the ship that required his reassignment. At the time of a June 2008 VA TBI screening, although the Veteran did not attribute his TBI to a fall during service, based on the assumption that the Veteran experienced a concussive force in service such as a blast or explosion, and his claim of "seeing stars" after that incident and symptoms of memory problems, balance problems or dizziness, irritability, and sleep problems, the Veteran was found to have a positive screen for TBI. At this time, he had a negative screening for PTSD and depression. In November 2008, it was noted that the Veteran continued to have problems with memory, dizziness, and some irritability, and requested to be seen by the polytrauma clinic. In December 2008, however, the Veteran described the precipitating incident as a fall on board a ship on or around April 1, 1994. He reported that he fell off a shaft ladder, hitting his head, and that he was "out for a few minutes." He remembered fellow service members shaking him and yelling his name, and that he experienced a bad headache for several days thereafter. He also injured his right ankle. He did not seek medical treatment at this time because he did not want to get his superior officer in trouble. In the assessment, it was noted that based on the Veteran's reported history of a fall and resultant loss of consciousness for a couple of minutes, the Veteran most likely did sustain a TBI on or around April 1, 1994. It was further noted that the Veteran's problems included cognitive deficits, such as concentration and focusing problems, tendencies toward anger and frustration, and shortened attention span, headaches, and emotional issues such as anxiety. VA treatment records from the end of December 2008 reflect that the Veteran's chief complaint was chronic headaches since a mild TBI in the early 1990s. That injury reportedly involved a fall approximately 20 feet down a ladder, with the Veteran hitting his head and sustaining a loss of consciousness. These headaches had been of variable intensity over the last many years. His current headaches were reported to be the worse they've been in several years. The assessment was chronic daily headache likely post-concussive syndrome. In January 2009, the Veteran continued to be treated for his headaches and was noted to have a positive depression screen. In February 2009, the assessment included depression, headaches, and problems with sleep. At the end of February 2009, the Veteran reported making progress with attention/memory. In March 2009, it was again noted that the Veteran experienced chronic daily headaches, which were likely post-concussive syndrome. Improvements with headaches and his sleep with medication were noted. Several days later, there was a diagnosis of depressive disorder, not otherwise specified. Tinnitus was also diagnosed. In June 2009, the assessment included headache-likely stress-related, and insomnia. In September 2009, the Veteran was evaluated for depression. It was noted that the Veteran's military background was not discussed due to difficulties in redirecting the Veteran from one topic to another. VA treatment records from January 2010 reflect an impression that included headache-likely multifactorial, sleep disturbance, personal stressors, and post-TBI. At the time of a VA psychological consultation in February 2010, the Veteran reported his head injury during service in 1994, which occurred when his boss stepped on his hand as he was coming down a ladder, causing him to fall 15 to 20 feet onto a steel deck. Shortly after the incident, he was transferred to administration. He stated that he did not get along with his supervisor. While this examiner found that the Veteran's psychological profile was consistent with a diagnosis of bipolar disorder with hypomanic component, she also found some evidence of PTSD symptomatology. She did not find that it was more likely than not that the Veteran sustained a closed cranial trauma in his in-service fall because there was no evidence of post-traumatic amnesia or consistent impairment in cognitive processes in any realm. Social Security Administration psychiatric examination results from March 2010 include multiple diagnoses, which do not include PTSD. However, at the end of the month, diagnoses of depression and PTSD were rendered by a VA social worked and with respect to the Veteran's PTSD, the examiner specifically noted the problems the Veteran had with the fellow service member in service, including the incident with the ladder. In addition, in July 2010, VA records reveal that the Veteran had a positive PTSD screening. In September 2010, a VA psychology assessment noted that the Veteran reported PTSD and depression since an incident of humiliation that occurred during the military. His petty officer was noted to have harassed the Veteran in a number of ways, including "flashing" the Veteran daily, and on one occasion, stepping on the Veteran's hand while he was climbing a ladder and causing him to fall 15 to 18 feet and sustain a blow to the head that knocked him unconscious. The VA psychologist provided an Axis I diagnoses of chronic PTSD, rule out bipolar disorder, and depressive disorder, not otherwise specified. In January 2011, a VA psychologist concluded that the Veteran appeared to meet the full criteria for cyclothymic disorder and also presented with PTSD symptoms that appeared to meet the full criteria for chronic PTSD, although some symptoms may be better accounted for by his hypomanic state. The Veteran endorsed suffering from reexperiencing phenomena primarily in the form of recurrent and distressing nightmares and recurrent and intrusive distressing memories and thoughts. He also reported persistent avoidance of stimuli associated with traumatic events that occurred while serving in the Navy. In the assessment, the examiner noted that the Veteran appeared to have issues related to postdeployment readjustment and was copying with multiple stressors (e.g., residuals of post military experiences/stressors, fluctuations in mood states, lack of financial resources and social support, unemployment, and foreclosure. In February 2011, there was an assessment of chronic headaches likely multifactorial with migraineous components, now with episodes of twitching without any pain, weakness, or cramping. In February 2011, the Veteran was also examined by the same psychologist who examined him in January 2011. The Veteran reported feeling "stressed out" due to financial problems and waiting for a decision about his service connection claim. The examiner also noted that there was a discussion about the stressors/trauma that occurred in the Navy. For example, sleeping in the same berthing quarters as the NCO's, which were five ranks higher than the Veteran; the petty officer who "tormented" the Veteran with teasing/name calling; the petty officer choking the Veteran several times, one time resulting in defecation, crying, fainting, and embarrassment in front of the other ship mates; and an incident in which the same petty officer stepped on the Veteran's hand while the Veteran was on a ladder, causing him to fall 15-20 feet, and resulting in the Veteran being "unconscious for 1-2 minutes." The Veteran reported feeling "scared for his life." The examiner stated that the Veteran reported symptoms that met the full criteria for a chronic PTSD diagnosis. VA treatment records reflect a magnetic resonance imaging (MRI) impression of unchanged low lying cerebellar tonsils in March 2011 and additional diagnoses of PTSD in August and November 2011. At the Veteran's hearing before the Board in July 2012, the Veteran testified to various forms of harassment he had to endure from a particular petty officer during service, including the petty officer exposing himself (transcript (T.) at p. 7). He also physically assaulted the Veteran, sometime pinning him down to the point that the Veteran would almost faint (T. at pp. 7-8). He also described how this petty officer caused him to fall down a ladder, and the immediate result of the Veteran's transfer to another area of the ship (T. at p. 8). The Veteran immediately experienced headaches and recurrent nightmares (T. at pp. 9-12). He has been diagnosed with both TBI and PTSD (T. at p. 12). The Veteran's mother noticed a change in the Veteran upon his return home from service, noting that he easily angered, suffered from headaches, and was very forgetful (T. at pp. 20-21). In September 2012, the Veteran submitted excerpts from the command history for the USS Vinson for 1995, in which it was noted that the Veteran left the Public Affairs Office of the ship in June, a department that differed from his initial assignment. In reviewing the evidence of record, the Board first notes that the Veteran clearly has current diagnoses of chronic PTSD and residuals of TBI, including recurring headaches. Moreover, the Board finds that the Veteran's testimony regarding the conduct of the petty officer during service and the circumstances of his fall and resulting head injury during service is, for the most part, consistent and credible. Consequently, the Board finds that the remaining question is whether the evidence supports a link between the Veteran's current diagnoses and service, either by way of continuity of symptomatology or by competent medical opinion evidence. In this regard, the Board would first note that while the Veteran and his mother are competent to state that the Veteran has been complaining of headaches since service, with diagnoses of different types of headaches of record, their statements alone are not sufficient to link such a diagnosis to service by way of continuity of symptomatology. However, these statements in conjunction with competent medical opinion are found to warrant service connection for residuals of TBI, to include recurring headaches. More specifically, in comparing the opinions for and against the claim for service connection for the Veteran's residuals of TBI, to include recurring headaches, the Board is unable to conclude that the opinion against the claim is more persuasive and probative than the opinions in favor of the claim. More specifically, in February 2010, a VA neuropsychologist concluded that it was not more likely than not that the Veteran sustained a closed cranial trauma in his in-service fall because there was no evidence of post-traumatic amnesia or consistent impairment in cognitive processes in any realm. However, the psychologist did not explain why post-traumatic amnesia was an expected consequence of closed cranial trauma or how the Veteran did not demonstrate consistent impairment of cognitive processes, especially given that the record does indicate both a history of at least an immediate foggy memory and a consistent pattern of some cognitive impairment. Moreover, the Veteran's primary manifestation of his TBI are headaches which have been most frequently assessed as neurological in nature, and the examiner did not comment on this aspect of his claim, to the extent, as a psychologist, she would have been able to offer competent opinions in this regard. On the other hand, in December 2008, a VA nurse practitioner opined that based on the Veteran's reported history of a fall and resultant loss of consciousness for a couple of minutes, the Veteran most likely did sustain a TBI on or around April 1, 1994. Moreover, a VA neurologist concluded in December 2008 that the Veteran's chronic daily headaches were likely post-concussive syndrome, and reiterated this opinion in March 2009. Indeed, even a VA doctor of osteopathic medicine concluded in January 2010 that the Veteran's headaches were at least multifactorial in nature, with likely contributors including post-TBI. Consequently, based on all of the foregoing, the Board will find that the evidence is at least in equipoise with respect to a relationship between the Veteran's fall in service and his residuals of TBI, and conclude that service connection for residuals of TBI, to include recurring headaches, is warranted. As for the Veteran's PTSD, as was noted previously, the Board notes that with the exception of an initial screening in which the Veteran referred to being exposed to a concussive blast, he has consistently reported the incident in which he was caused to fall off the ladder by the petty office during service, in addition to other incidents in which he was subjected to abusive conduct by this fellow service member. The record also reflects that the Veteran was indeed transferred during his time on board the USS Vinson and he has testified to turning to alcohol to deal with the harassment and abuse, both of which further confirm the incidents as reported by the Veteran. Moreover, the record reveals multiple competent medical opinions in support of the claim. More specifically, in September 2010, a VA psychology assessment noted that the Veteran reported PTSD and depression since an incident of humiliation that occurred during the military. His petty officer was noted to have harassed the Veteran in a number of ways, including "flashing" the Veteran daily, and on one occasion, stepping on the Veteran's hand while he was climbing a ladder and causing him to fall 15 to 18 feet and sustain a blow to the head that knocked him unconscious. The VA psychologist provided an Axis I diagnosis that included chronic PTSD. In January 2011, a VA psychologist concluded that the Veteran appeared to meet the full criteria for cyclothymic disorder and also presented with PTSD symptoms that appeared to meet the full criteria for chronic PTSD, although some symptoms may be better accounted for by his hypomanic state. The Veteran endorsed suffering from reexperiencing phenomena primarily in the form of recurrent and distressing nightmares and recurrent and intrusive distressing memories and thoughts. He also reported persistent avoidance of stimuli associated with traumatic events that occurred while serving in the Navy. In addition, in February 2011, the Veteran was again examined by the same psychologist who examined him in January 2011. The examiner noted that there was a discussion about the stressors/trauma that occurred in the Navy. For example, sleeping in the same berthing quarters as the NCO's, which were five ranks higher than the Veteran; the petty officer who "tormented" the Veteran with teasing/name calling; the petty officer choking the Veteran several times, one time resulting in defecation, crying, fainting, and embarrassment in front of the other ship mates; and an incident in which the same petty officer stepped on the Veteran's hand while the Veteran was on a ladder, causing him to fall 15-20 feet, and resulting in the Veteran being "unconscious for 1-2 minutes." The Veteran reported feeling "scared for his life." The examiner stated that the Veteran reported symptoms that met the full criteria for a chronic PTSD diagnosis. In short, despite the lack of a specific in-service report of the alleged fall off the ladder, the Veteran's account has for the most part been consistent and confirmed by circumstances following the most significant incident. In addition, there are two medical opinions of record diagnosing the Veteran with PTSD related to the incidents involving the petty officer during service. Consequently, with such evidence in support of the claim, and no medical evidence directly contradicting the account of the Veteran's interaction with the petty officer, the Board will give the Veteran the benefit of the doubt, and find that service connection for PTSD is also warranted. ORDER Service connection for PTSD is granted. Service connection for residuals of TBI, to include recurring headaches, is granted. REMAND Although the Board has determined that the evidence supports the grant of service connection for PTSD, as was noted above, since his discharge from service, the Veteran has been diagnosed with other psychiatric disorders, to include adjustment disorder, anxiety disorder, depression, bipolar disorder, and cyclothymic disorder. However, despite his credible report of the stressors involving the petty officer during service, he was never provided with an appropriate examination and opinion as to whether any currently diagnosed psychiatric disorder other than PTSD was related to service, including any incident or incidents therein. Consequently, the Board finds that this issue must be remanded so that the Veteran can be provided with such an examination and opinion. As for the remaining issue of entitlement to medical care under the provisions of 38 U.S.C.A. § 1702 for a psychiatric disorder, the provisions of this statute provide that any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. 38 U.S.C.A. § 1702(a) (West 2002 & Supp. 2013). While the Veteran has not been diagnosed with a psychosis, 38 U.S.C.A. § 1702(b) further provides that any veteran of the Persian Gulf War who develops an active mental illness other than psychosis shall be deemed to have incurred such disability in the active military service, if such disability develops (1) within two years after discharge or release from the active service, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War. Thus, although the record does not currently reflect that the Veteran developed active PTSD during or within two years of his discharge from active service in July 1995, since further examination could lead to evidence that the Veteran developed another active mental disorder during or within two years of his discharge from service in July 1995, the Board finds that this issue is inextricably intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the etiology of any acquired psychiatric disorder, other than PTSD. The claims folder should be reviewed and that review should be indicated in the VA examination report. The rationale for all opinions should be provided. Specifically, the examiner is asked to render an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran has an acquired psychiatric disorder other than PTSD that is related to his period of active service. In this regard, if the response to the first question is no, the examiner should also offer an opinion as to whether any acquired psychiatric disorder developed in active form within two years of the Veteran's discharge from service on July 31, 1995 (i.e., July 31, 1997). If the examiner determines that he or she cannot provide an opinion on the issue at hand without resorting to speculation, the reviewer should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. 2. Thereafter, readjudicate the claims remaining on appeal. If the benefits sought remains denied, furnish a supplemental statement of the case to the Veteran and his attorney and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs