Citation Nr: 1339250	
Decision Date: 11/29/13    Archive Date: 12/13/13

DOCKET NO.  10-43 679	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, generalized anxiety disorder and insomnia.

2. Entitlement to an initial evaluation in excess of 10 percent for coronary artery disease.


REPRESENTATION

Appellant represented by:	James P. Cone, Attorney


WITNESSES AT HEARINGS ON APPEAL

Appellant, his spouse, and K.K.

ATTORNEY FOR THE BOARD

Christopher Murray, Counsel


INTRODUCTION

The Veteran had active military service from April 1998 to August 1998, December 2001 to December 2002 and from January 2004 to March 2004 with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army National Guard of West Virginia.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO in July 2012, and the Veteran, his spouse, and K.K. testified before the Board at an October 2011 hearing conducted at the RO.  Transcripts of the hearings are of record.

The issue of entitlement to an increased initial evaluation for coronary artery disease is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1. The Veteran is in receipt of the Combat Action Badge; claimed in-service stressors related to combat service are therefore conceded.

2. The Veteran has been diagnosed with PTSD conforming to the DSM-IV criteria due to in-service combat related stressors.

3. The Veteran has been diagnosed with major depressive disorder, generalized anxiety disorder and insomnia both as related to his PTSD and to his periods of active service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychiatric disorder, including PTSD, major depressive disorder, generalized anxiety disorder and insomnia, have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

With respect to the Veteran's service connection claim, since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)).  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Analysis

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

The Veteran claims service connection for an acquired psychiatric disorder, including PTSD, major depressive disorder, generalized anxiety disorder and insomnia.  He asserts his psychiatric disorder is due directly to the circumstances of his active service, specifically his service in Afghanistan.  In this regard, he has identified a number of in-service stressors, including driving through natural choke points through areas of Afghanistan known for previous sniper fire and ambushes.

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; 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) (2012).  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.  See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(2) (2012) (pertaining to combat veterans).

The Veteran is in receipt of the Combat Action Badge.  See September 2008 NGB Form 22.  As such, pursuant to 38 U.S.C.A. § 1154(b), the Board will accept the Veteran's lay testimony as sufficient evidence that the claimed in-service combat stressors occurred.  However, the record contains a difference of opinion regarding whether the Veteran has a current diagnosis of PTSD that conforms to the DSM-IV criteria, as required by regulation.  See 38 U.S.C.A. § 3.304(f).

In this regard, the Board observes that a July 2010 VA examination report indicates that, despite subjective complaints, there was not sufficient evidence to support a diagnosis of PTSD.  The VA examiner found that the Veteran has some symptoms related to PTSD, but "did not have that emotional expression that most of the PTSD patients have."  However, the Board notes numerous VA treatment records contain a diagnosis of chronic PTSD.  

Further, the Veteran has submitted a detailed report of an October 2011 private psychological evaluation provided by Dr. Grzegorek, a licensed psychologist.  In his report, Dr. Grzegorek found that, based on information obtained in an individual interview, psychological testing and a review of the Veteran's claims file, the Veteran suffers from PTSD conforming to the DSM-IV criteria as a result of his in-service combat experiences in Afghanistan.

In considering the evidence in its entirety, and resolving all doubt in favor of the Veteran, the Board accepts the diagnosis of PTSD as contained in the Veteran's VA treatment records and October 2011 private evaluation report.  The Board notes that a "PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor."  Cohen v. Brown, 10 Vet. App. 128, 140 (1997).  Further, "mental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis."  Id. 

As a final note, with respect to psychiatric diagnoses other than PTSD, the Board observes Dr. Grzegorek also diagnosed major depressive disorder, generalized anxiety disorder and insomnia.  In his October 2011 report, Dr. Grzegorek specifically found these alternate psychiatric disorders are both directly related to the Veteran's experiences in active service and also to his PTSD.  The record contains one negative etiological opinion regarding a potential relationship between a psychiatric disorder other than PTSD (major depressive disorder) and the Veteran's active service.  See August 2010 VA addendum opinion.  However, upon review of that opinion, the Board finds that at most the evidence is in equipoise on this point.  

A Veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails."  Id. 

As discussed above, the Board accepts the diagnoses contained in the record as conforming to the DSM-IV criteria, as well as linking the Veteran's current PTSD to the in-service stressors as reported by the Veteran.  As the Veteran is a combat Veteran, his lay testimony is sufficient to establish the reported in-service stressors.  See 38 U.S.C.A. § 1154(b); see also 38 C.F.R. § 3.304(f).  The Board further accepts the diagnoses and opinion rendered by Dr. Grzegorek linking major depressive disorder, generalized anxiety disorder and insomnia to both the Veteran's active service and PTSD.  Therefore, the Board concludes that service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, generalized anxiety disorder and insomnia, is warranted, and the Veteran's claim is granted.  



ORDER

Service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, generalized anxiety disorder and insomnia, is granted.


REMAND

The Veteran asserts his service-connected coronary artery disease warrants an initial evaluation greater than the currently assigned 10 percent.  

The Veteran testified that he underwent a placement of a heart catheter and stent in May 2010, and has submitted treatment records associated with this procedure.  While he was last provided a VA examination to address the severity of his coronary artery disease in August 2010, the metabolic equivalent (MET) level reported by this examination is based on a stress test performed in August 2009, prior to his recent heart procedure.  In addition to associated symptomatology, the METs level is an integral part of evaluating cardiac disabilities.  See generally 38 C.F.R. § 4.104 (2012).  Because the August 2010 VA examination did not include relevant testing, but rather relied on previous stress test results, the Veteran's current level of disability remains unclear.  As such, a new VA examination is necessary to address the severity of the Veteran's service-connected disability prior to a Board decision in this matter.  See, e.g., Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's statutory duty to assist includes a thorough and contemporaneous medical examination).

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent and severity of his service-connected coronary artery disease.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated clinical testing and studies should be conducted.

The examiner should address the following:

a. indicate all symptomatology related to the Veteran's coronary artery disease;

b. report his current workload in terms of METs;

c. indicate whether coronary artery disease results in any of the following:

i. chronic congestive heart failure;

ii. left ventricular dysfunction, providing the level of ejection fraction;

iii. cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray.

A complete rationale should be given for all opinions and conclusions expressed.

2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence.  If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.   

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. 2013).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs