Citation Nr: 1339253 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-01 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) with depressive disorder and anxiety disorder. 2. Entitlement to service connection for onychomycosis. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied entitlement to service connection for PTSD, onychomycosis (claimed as fungal infection of the hands and feet), major depression secondary to PTSD, and panic attacks and anxiety disorder. In December 2009, the Veteran timely perfected an appeal of the denial of service connection for these issues. In November 2012, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The medical evidence indicates that the Veteran has been diagnosed with a variety of psychiatric disorders, including depressive disorder and anxiety disorder. The Board also notes that separately diagnosed psychiatric conditions can be service connected, but cannot be separately rated unless they resulted in different manifestations. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder"). As discussed below, the Board is granting entitlement to service connection based on medical nexus opinions that contain diagnoses of multiple psychiatric disorders. The issue has therefore been recharacterized more broadly, to include these disorder, as indicated on the title page. In addition to the paper claims file, there is an electronic claims file associated with the appellant's claims, known as Virtual VA. A review of the documents in such file reveals that they contain VA treatment records pertinent to the issues on appeal. The issue of entitlement to service connection for onychomycosis 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. FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD with depressive disorder and anxiety disorder. 2. The Veteran's account of in-service military sexual trauma (MST) has been corroborated by credible testimonial statements from family members. 3. Competent and persuasive medical evidence indicates that the Veteran's current PTSD with depressive disorder and anxiety disorder is causally related to the MST experienced in service. CONCLUSION OF LAW PTSD with depressive disorder and anxiety disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination as to the only claim being decided herein, no further discussion of compliance with VA's duty to notify and assist is necessary. 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2013); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The diagnostic criteria, including those related to stressors, set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125 (2013). The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Cohen, 10 Vet. App. at 140. There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records which may corroborate his or her 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)(5). The VA Adjudication Manual Rewrite (M21-1MR) also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.g. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). In this case, the Veteran asserts that he has PTSD with depressive disorder and anxiety disorder that was either caused or aggravated by a sexual assault that occurred in service while serving aboard the U.S.S. New Jersey in 1969. The Veteran has submitted statements indicating that the sexual assault he experienced in the military caused him to have flashbacks of abuse he endured as a child and resulted in his becoming extremely withdrawn, insecure, depressed, and anxious. The Veteran's VA treatment records show that he has been receiving regular ongoing psychiatric treatment since at least February 2005, when he was diagnosed with depression. In May 2008, the Veteran has was diagnosed by a mental health therapist with depressive disorder and panic disorder without agoraphobia, rule out PTSD, and the Veteran was later diagnosed with PTSD from MST/major depression and recurrent moderate panic with agoraphobia. The Veteran's private treatment records also indicate that he has been receiving counseling for psychiatric disorders and has been given various psychiatric diagnoses, including PTSD, major depression, and anxiety disorder. A November 2011 correspondence from the Veteran's sister and a December 2011 correspondence from his brother both state that the Veteran had been an outgoing and happy person before he entered the service, but following his discharge from service had become more withdrawn, angry, and unhappy. The Veteran's VA psychiatrist submitted a letter in May 2009 stating that the Veteran was suffering from PTSD based on an incident of MST where a superior officer molested him. The psychiatrist wrote that the Veteran was having "disturbing nightmares of sexual abuse," hypervigilance, paranoia, chronic insomnia, and panic attacks, as well as comorbid major depression and panic disorder. The same psychiatrist indicated that the Veteran had PTSD based on an incident of MST in VA treatment notes, including in February 2012. The Veteran's social worker submitted a letter in November 2011 stating that the Veteran had been diagnosed with recurrent severe major depression which was related to being sexually molested in the Navy. He wrote that "[f]ollowing the molestation and his discharge from the Navy, [he] began experiencing periods of depression, anxiety and increasing health issues." After reviewing the evidence described above, the Board finds that the competent medical evidence of record indicates that the Veteran has a current diagnosis of a psychiatric disorder, including PTSD with depressive disorder and anxiety disorder, which is related to his service. The Veteran's VA psychiatrist and social worker have provided competent medical evidence indicating that his PTSD with depressive disorder and anxiety disorder was caused, at least in part, by his traumatic experience in service, specifically MST. Letters from the Veteran's brother and sister provide evidence of behavior change following his discharge from service and, pursuant to the regulation specifically applicable to cases involving MST, provide credible evidence to sufficiently corroborate the claimed stressor. See 38 C.F.R. § 3.304(f)(5). Moreover, the Federal Circuit recently indicated that in cases such as this one involving an allegation that PTSD is connected to military sexual assault without a service record documenting an unreported sexual assault, the lack of such record is not pertinent evidence that the sexual assault did not occur. AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). The Board also finds that there is no clear and convincing evidence contrary to the VA psychiatrist's or the private social worker's opinions or to the Veteran's or his siblings' assertions. As such, entitlement to service connection for PTSD with depressive disorder and anxiety disorder is warranted. ORDER Entitlement to service connection for PTSD with depressive disorder and anxiety disorder is granted. REMAND The Veteran contends that he is entitled to service connection for onychomycosis or other fungal infection of the nails. The Veteran stated at his November 2012 Board hearing that he first had symptoms of yellow and hardening nails while in the service, and that these symptoms have continuously persisted and worsened since that time. The Veteran's private and VA treatment records show that he has been receiving treatment for onychomycosis of the fingernails and toenails since at least 2000. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id. at 83. Here, the Veteran has credibly provided lay statements indicating that he observed changes in the color and texture of his nails while in the service. The Board recognizes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, the Veteran has alleged a continuity of symptomatology since the time of his service. Unfortunately, the record includes no medical evidence regarding the possible relationship of the current onychomycosis diagnosis and the earlier perceived symptoms described by the Veteran. Under these circumstances, the Board finds that examination of the Veteran to include securing a medical opinion-based on full consideration of his documented medical history and assertions, and supported by clearly stated rationale-is needed to resolve the claim. McLendon, 20 Vet. App. at 83. Additionally, the record indicates that the Veteran has received treatment for onychomycosis at the VA Pueblo Outpatient Clinic in Pueblo, Colorado. The record currently contains the Veteran's VA treatment records from February 2005 to February 2012. Any outstanding, pertinent VA treatment records dated since February 2012 should be obtained and associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the VA Pueblo Outpatient Clinic all outstanding, pertinent records of medical treatment of the Veteran. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding the requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Thereafter, the AMC/RO should schedule the Veteran for a VA examination to determine the nature and etiology of onychomycosis or other fungal infection of the hands and feet. The claims folder, access to Virtual VA, and a copy of this remand must be provided to and reviewed by the physician examiner as part of the examination. The physician examiner must specify in the report that the claims file and Virtual VA records have been reviewed. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale regarding: (1) What are the Veteran's current diagnoses pertaining to the nails of his hands and/or feet? (2) Is it at least as likely as not (50 percent probability or better) that any diagnosed disorder had its onset during or is otherwise related to the Veteran's service? In addition, the examiner should discuss whether there is any evidence of in-service manifestations of symptoms of onychomycosis or other fungal infection and should comment on the Veteran's lay assertions of observing that his nails had yellowed and hardened in service. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinions. The examination report must include complete rationale for all opinions and conclusions reached. 3. The AMC/RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. The AMC/RO must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. The AMC/RO must ensure that the examiners documented their consideration of all records contained in Virtual VA. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After undertaking any other development deemed appropriate, the AMC/RO should readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs