Citation Nr: 1340156 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-10 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder, to include depressive disorder, anxiety disorder, and schizoid personality traits. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from July 1966 to May 1970, including service in the Republic of Vietnam from December 1966 to December 1967 as a Combat Engineer. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In deciding this appeal, the Board has reviewed the Veteran's electronic (Virtual VA) file, in addition to his physical claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are additional treatment records among the Veteran's paperless records in Virtual VA, from the Hibbing Community Based Outpatient Clinic (CBOC) and Minneapolis VA Medical Center (VAMC) covering treatment from December 2010 to June 2011. There are no records for this Veteran in VBMS. The Veteran specifically claimed entitlement to service connection for posttraumatic stress disorder (PTSD), depression, and anxiety. The Board has recharacterized the issues as reflected on the cover page. The VA treatment records clearly raised the issue of the nature of the appellant's current mental condition with diagnoses for PTSD and depression, a diagnosis of schizoid personality traits, and notation for anxiety as a symptom. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Therefore the Board will consider service connection for all mental health diagnoses of record. In April 2012, subsequent to the RO's March 2012 supplemental statement of the case (SSOC), the Veteran submitted a statement in support of his claim. The RO did not review this new evidence as it may pertain to the issues on appeal in a subsequent SSOC prior to certification of this appeal to the Board in April 2012. However, the Veteran's representative has submitted a November 2013 waiver of that April 2012 statement, allowing the Board's initial review of this new evidence. 38 C.F.R. § 20.1304. The issue of entitlement to service connection for a psychiatric disorder 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 Resolving all reasonable doubt in favor of the Veteran, there is a current diagnosis of PTSD that is based upon a combat stressor. CONCLUSION OF LAW The criteria for the establishment of entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.326(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, and 3.326(a). In the decision below, the Board grants service connection for PTSD. In light of the Board's favorable decision on the Veteran's claim, the Board finds that all notification and development action needed to fairly adjudicate this appeal have been accomplished. The Veteran seeks service connection for PTSD based upon his service in the Republic of Vietnam. Specifically, he contends that his PTSD is due to his combat experience in Vietnam. He has consistently described a specific ambush as well as mortar attacks. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the criteria for service connection of PTSD have been met and the appeal will be allowed. In order to establish entitlement to service connection for any disability on a direct basis, the record must contain: (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). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Id.; 38 C.F.R. § 4.125(a). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon the circumstances of the case. VA has provided for specific types of cases where lay evidence alone may be sufficient to describe the stressor and further corroborating evidence will not be required. Corroborating evidence is not required in cases where (1) PTSD is diagnosed in service; (2) the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) the stressor is related to the Veteran's fear of hostile military or terrorist activity; and (4) the evidence establishes that the Veteran was a prisoner-of-war and the stressor is related to that prisoner-of-war experience. 38 C.F.R. § 3.304(f)(1), (f)(2), (f)(3), (f)(4). In any of the above situations, the Veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required providing that such testimony is found to be consistent with the circumstances, conditions, or hardships of service and there is no clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1), (f)(2), (f)(4). Regarding combat stressors, the evidence necessary to establish the occurrence of a recognizable stressor during service will vary depending on whether the veteran engaged in combat with the enemy. Hayes v. Brown, 5 Vet. App. 60 (1993). 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 C.F.R. § 3.304(f). There need not be "corroboration of every detail including the appellant's personal participation in the identifying process." Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Regarding stressors based on a Veteran's fear of hostile military or terrorist activity, lay evidence alone may establish an alleged stressor where: 1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted 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; 3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and 4) there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). Fear of hostile military or terrorist activity is defined as occurring when 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 an 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. 38 C.F.R. § 3.304(f)(3). First, the Board finds that the Veteran's stressor is combat-related and that, taking the evidence in the light most favorable to the Veteran, he participated in combat. The Veteran alleges that he has acquired PTSD as a result of combat experience in An Hoa, South Vietnam with the First Engineer Battalion in January 1967 shortly after his arrival in Vietnam. His service personnel records (SPRs) document that he arrived in Vietnam in December 1966. He served with the First Engineer's Battalion with a military occupational specialty of a Combat Engineer. His SPRs indicate participation in Counter Insurgency Operations against the Communist Viet Cong, Operation Dixie, and Operation Arizona. He is in receipt of the Vietnam Campaign Medal with device and the Vietnam Service Medal with two stars. The Veteran's MOS and SPRs are evidence of personal participation in combat. The Board finds that the Veteran engaged in combat with the enemy; his alleged stressors of an ambush and mortar attacks are related to that combat. There is an absence of clear and convincing evidence to the contrary, and these claimed stressors area consistent with the circumstances, conditions, or hardships of the veteran's service in Vietnam, with participation in various operations as a combat engineer. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). Accordingly, there are verified stressors. Second, the Board finds that a resolution of reasonable doubt in the Veteran's favor mandates a finding of a PTSD diagnosis based upon the above-noted stressors. Although an October 2010 VA examiner determined that PTSD was not a proper diagnoses, there are multiple VA treatment records diagnosing PTSD. Although not in such great detail as a comprehensive VA examination, the Board must presume the diagnoses are based upon DSM-VI, particularly where there is some discussion of the criteria under DSM-IV. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). In June 2010, a clinical psychologist at the Minneapolis VAMC specifically discussed the Veteran's nightmares recalling the ambush described in his September 2010 stressor statement, and diagnosed depression. The clinical psychologist addressed the criteria required for PTSD diagnoses by the DSM-IV; discussing the criteria of exposure to a traumatic event, persistent reexperiencing of that combat trauma in the form of nightmares, persistent avoidance of stimuli associated with the trauma, persistent symptoms of increased arousal not present before the trauma in the form of sleep problems and irritability, duration of the disturbance, and whether the disturbance causes clinically significant distress or impairment of social or occupational functioning. In a July 2010 VA record, a psychiatric mental health nurse practitioner provided a PTSD diagnosis based on her examination of the Veteran and a review of the clinical psychologist's discussion of the DSM-IV criteria. In June 2011 a VA staff psychiatrist reviewed the Veteran's combat experience in Vietnam, and confirmed a PTSD diagnosis. While it is unclear whether any of the VA practitioners reviewed the Veteran's claims file, each took a detailed history consistent with the information in the claims file as to the Veteran's in-service combat experience and his alleged stressors and conducted an examination of the Veteran. The Board finds the VA opinions of significant probative value as such is derived from a factually accurate, fully articulated, and sound reasoning supporting the conclusion, not the mere fact that the claims file was reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). As there is a diagnosis of PTSD related to the Veteran's in-service stressors based on combat experiences, the Board concludes that the evidence supports the grant of service connection for PTSD. 38 C.F.R. § 3.304(f)(3). Accordingly, and resolving all reasonable doubt in favor of the Veteran, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to provide the Veteran with an examination. Although a 2010 examination was provided for PTSD, no examination regarding the non-PTSD psychiatric disorders was provided. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, there are diagnoses of depressive disorder and schizoid personality traits and notations of anxiety. There are in-service stressors as determined in the above decision. The Veteran has asserted ongoing psychiatric symptoms due to his in-service experiences. Accordingly, remand is required for an examination and etiological opinion. Additionally, the Veteran appears to routinely receive healthcare through the VA Healthcare System at the Minneapolis VAMC and Hibbing CBOC. The most recent VA treatment records in Virtual VA are from June 2011. On remand, the AMC should obtain any outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Specifically request treatment records from the Minneapolis VAMC and Hibbing CBOC dated from June 2011 to the present, and associate them with the claims file. 2. After any outstanding treatment records have been obtained, provide the Veteran a VA psychiatric examination to determine the nature and likely etiology of the Veteran's currently diagnosed non-PTSD psychiatric disorders. All indicated tests must be accomplished. The claims file must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this receipt and review in any report generated as a result of this remand. The examiner is requested to provide an opinion regarding the presence of non-PTSD disorders. If there is no diagnosed depressive disorder, the examiner must address the other diagnoses of record. Then, for each separately diagnosed non-PTSD psychiatric disorder, provide the following opinions: a. whether it is at least as likely as not (a 50 percent or greater probability) that each psychiatric disorder is related to the Veteran's active service or combat experience in Vietnam; and b. whether it is at least as likely as not (a 50 percent or greater probability) that each psychiatric disorder is caused by or aggravated by the Veteran's service connected PTSD. A thorough explanation, to include reference to the relevant evidence of record, must be provided for all opinions expressed. If the examiner is unable to provide a requested opinion, a supporting explanation must be given concerning why the opinion cannot be provided. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim on appeal. If the benefits sought on appeal are not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs