Citation Nr: 1342398 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-27 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. 3. Entitlement to service connection for a thoracic and lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army National Guard from January 1998 to April 1998, and in the Air National Guard from May 2007 to October 2007. These matters come before the Board of Veterans' Appeals (the Board) from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Based on the statements of the Veteran and his representative, as well as the medical evidence of record, and in light of the holding in Clemons v. Shinseki, the Veteran's claim for service connection for PTSD has been recharacterized as noted above. 23 Vet. App. 1 (2009) (holding that when a Veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The issues of entitlement to service connection for a thoracic and lumbar spine disability and entitlement to service connection for an acquired psychiatric disorder, other than PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD, as a result of his military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the Veteran's PTSD was incurred in or is otherwise related to his active service. 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (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. See 38 C.F.R. § 3.304(f)(3) (2013). The Veteran contends that service connection is warranted for PTSD. He asserts that his in-service stressors included fear for his life from the possibility of being hit by a mortar shell, the detonation of an IED near the gate of the base at which he was stationed, and graphic videos he watched in mandatory briefings depicting military aircraft attacking enemy personnel. According to a VA examination dated September 2010, and a VA Psychiatric Evaluation Note dated August 2011, the Veteran has a current medical diagnosis of PTSD. While the September 2010 VA examiner was unable to attribute the Veteran's PTSD to his reported in-service stressors, the August 2011 VA psychiatrist noted that the Veteran was exposed to trauma during his deployment to Iraq. As to the reported in-service stressors, the RO denied the Veteran's claim on the basis that the Veteran provided no specific information or event that could be sent to the service department for collaboration of the events. As noted above, however, 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. In this case, the Veteran has been diagnosed with PTSD by a VA psychiatrist based on his reported in-service stressors. The Veteran's DD 214 and service personnel records indicate the Veteran had a military occupational specialty of Munitions Systems Apprentice during his service in Iraq from May 2007 to September 2007. The Veteran's job title is not inconsistent with witnessing the detonation of an IED or fear of being hit by a mortar shell. The corroboration of every stressor detail is not required. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). Thus, the Board concludes that the Veteran's reported stressors involving the IED detonation and fear of a mortar attack are consistent with the time, place, and circumstances of his service. The Board finds that the medical evidence of record for and against the claim is in relative equipoise. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection is granted. 38 U.S.C. § 5107 (West 2002); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for PTSD is granted. REMAND With respect to the claim for entitlement to service connection for a thoracic and lumbar spine disability, the Veteran's medical record appears to be incomplete. It appears that the service treatment records associated with the claims file do not contain a medical examination that was conducted prior to the Veteran's entry onto active duty. Additionally, various records in the claims file reference workers' compensation and Social Security disability benefits related to the Veteran's spine; however, there is no indication in the claims file that those records were requested. The above records are pertinent to the Veteran's disability that is the subject of this appeal, and should be obtained on remand. The August 2009 rating decision denied the Veteran's claim for entitlement to service connection for a thoracic and lumbar spine disability on the basis that no spine disability was shown to have occurred in service or was aggravated during service, nor did the record contain a nexus opinion linking the Veteran's spine disability to his military service. However, the Veteran submitted statements suggesting his active duty service aggravated his spine disability. The Veteran's service treatment records indicate he had numerous spine problems prior to his active duty service. In a statement dated June 2010, the Veteran said he injured his back while in Iraq, that his back pain became worse while there, and that he began suffering spasms due to the performance of his duties. Given this, the Veteran should be afforded a VA examination to evaluate the current nature and etiology of his spine disability. 38 C.F.R. § 3.159(c)(4). With respect to the claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, the medical evidence of record suggests there may be a causal link between the Veteran's diagnoses of major depressive disorder, anxiety disorder, and opioid dependence, and his back disability. Specifically, the September 2010 VA examiner noted that it was not possible to separate the depression and anxiety symptoms the Veteran suffered as a result of his back from the symptoms resulting from other factors. Thus, the Board must defer adjudication of the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, pending resolution of the inextricably intertwined thoracic and lumbar spine claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). If the RO grants the Veteran's claim of entitlement to service connection for a thoracic and lumbar spine disability, the Veteran should then be scheduled for a VA examination to determine whether any acquired psychiatric disorder, other than PTSD, to include major depressive disorder, anxiety disorder, and opioid dependence in early remission, is secondary to his spine disability. As these matters are being returned for additional development, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). Accordingly, the case is REMANDED for the following actions: 1. Request records of the Veteran, including service treatment records pertaining to his period of active duty service from May to October 2007 from the appropriate facility, to include the Veteran's entrance examination. Notice shall be provided to the Veteran if records are not obtained. Documentation regarding this paragraph should be associated with the claims file or as appropriate. 2. Obtain all outstanding VA treatment and evaluation records dated for the entire period on appeal to present. In particular, all records and reports relating to the Veteran's spine disability and acquired psychiatric disorders should be obtained. All records received should be associated with the claims file. 3. Request the Veteran furnish all dates and places of treatment for his spine disability and acquired psychiatric disorders. After obtaining authorization from the Veteran, request copies of any outstanding treatment records from any treatment provider identified by the Veteran. If VA is unable to obtain such records, the Veteran should be accorded the opportunity to furnish such records directly to VA. All records received should be associated with the claims file. 4. Contact the Veteran and obtain information and releases sufficient to retrieve complete Social Security disability records (all determination(s) and the medical records on which such determination(s) were based), and workers compensation records regarding the Veteran. Any records obtained shall be associated with the claims file. Notice shall be provided to the Veteran if records are not obtained. Documentation regarding this paragraph should be associated with the claims file or as appropriate. 5. When the above actions have been accomplished, to the extent possible, afford the Veteran an examination by an appropriate examiner, to determine the current nature and etiology of his thoracic and lumbar spine disability. Any required studies or diagnostic tests should be performed. Following examination of the Veteran and review of his pertinent medical history and lay statements, the examiner should provide an opinion on the following: a) Whether there is clear and unmistakable evidence that the Veteran had a preexisting spine disability prior to either active duty service. For VA compensation purposes, "clear and unmistakable evidence" is that which cannot be misunderstood or misinterpreted; it is undebatable. b) If so, whether there is clear and unmistakable evidence that the Veteran's preexisting spine disability was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). For VA compensation purposes, "clear and unmistakable evidence" is that which cannot be misunderstood or misinterpreted; it is undebatable. c) If there is not clear and unmistakable evidence that the Veteran had a preexisting spine disability, opine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's current spine disability had its onset in service or is otherwise related to service. Any opinion offered should be accompanied by supporting rationale. 6. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's spine disability claim. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. 7. If the Veteran is granted service connection for a thoracic and lumbar spine disability, provide the Veteran a VA examination to determine the etiology and nature of the Veteran's acquired psychiatric disorders, including major depressive disorder, anxiety disorder, and opioid dependence in early remission. Specifically, the examiner should provide a written response to the following: a) Indentify any acquired psychiatric disorder (other than PTSD) that is currently manifested or that is indicated in the records at any time since March 2009. b) For each acquired psychiatric disorder (other than PTSD) identified, proffer an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the disability: i) is related to or had its onset during service; ii) is due to or caused by the Veteran's spine disability; iii) has been aggravated (i.e., worsened) beyond their natural progression by the Veteran's spine disability. Any opinion offered should be accompanied by supporting rationale. 8. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's acquired psychiatric disorders claim. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs