Citation Nr: 1343055 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-04 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether the severance of service connection was proper for posttraumatic stress disorder (PTSD) (with anxiety, sleep disturbances, and chemical dependency). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO), which severed service connection for PTSD (with anxiety, sleep disturbances, and chemical dependency), effective January 1, 2011. Jurisdiction now sits with the St. Louis, Missouri RO. In March 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims file. FINDING OF FACT The evidence of record does not show that the grant of service connection for PTSD (with anxiety, sleep disturbances, and chemical dependency) was clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria to sever service connection for the Veteran's PTSD (with anxiety, sleep disturbances, and chemical dependency) have not been met. 38 U.S.C.A. §§ 1110 , 5109 (West 2002); 38 C.F.R. §§ 3.105(d) , 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the Board's favorable disposition to restore service connection for PTSD (with anxiety, sleep disturbances, and chemical dependency), the Board finds that no discussion of VCAA compliance is necessary at this time for this issue. Severance of Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous, the burden being on VA, and only where certain procedural requirements have been met. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997); 38 C.F.R. § 3.105(d) (2012). Severance of service connection based on any standard less than that set forth in 38 C.F.R. § 3.105(d) is erroneous as a matter of law. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Graves v. Brown, 6 Vet. App. 166 (1994); Baughman v. Derwinski, 1 Vet. App. 563 (1991). The provisions regarding severance of service connection contemplate consideration of evidence that post-dates the award of service connection and that VA is not limited to the law and the record that existed at the time of the original decision. 38 C.F.R. § 3.105(d) (2012); Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Allen v. Nicholson, 21 Vet. App. 54 (2007); Venturella v. Gober, 10 Vet. App. 340 (1997). Indeed, in Stallworth, the Court, quoting Venturella, reiterated that if the Court were to conclude that a service-connection award could be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record. A severance decision must focus not on whether the original decision was clearly erroneous but on whether the current evidence established that service connection is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome so that based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. In an August 2009 rating decision, the RO granted service connection for PTSD (with anxiety, sleep disturbance and chemical dependency). The RO proposed to sever service connection for PTSD (with anxiety, sleep disturbance and chemical dependency) in December 2009. It then severed service connection for PTSD in a September 2010 rating decision because the RO determined that the evidence did not show a confirmed diagnosis of PTSD. The Board notes that the Veteran and his representative have consistently asserted that there was no clear and unmistakable error (CUE) in the rating decision which granted service connection and they have maintained that VA resolved any reasonable doubt in favor of the Veteran that may have existed in the medical evidence at the time of the original grant of service connection. The evidence previously and presently has conflicting decisions as to the Veteran's diagnosis of PTSD. A June 2003 treatment note indicates that the Veteran was seen by a VA nurse practitioner (that the RO later stated was not qualified to provide a diagnosis of a mental condition), who diagnosed PTSD. Secondly, the Veteran underwent a VA C and P psychiatric examination in August 2009. The Veteran described a friendly fire incident that was later verified, wherein he witnessed the death of a serviceman who was killed during his service in Iraq. The serviceman was shot by friendly fire when he was mistaken for an Iraqi soldier. The Veteran described symptoms of an inability to sleep, being despondent, and reexperiencing the event. The examiner diagnosed PTSD. However, he indicated that the Veteran needed to undergo psychological testing to verify the diagnosis. The psychological testing was referred to but not completed. The RO found the two incidents to be in equipoise and service connection was granted for PTSD. In September 2009, the Veteran filed a notice of disagreement to the rating for PTSD. Thereafter, the RO requested a medical opinion to determine if the Veteran had PTSD related to a confirmed stressor in service. In November 2009, a VA C and P psychological opinion was provided. This opinion was provided as a result of a review of the record, and no examination of the Veteran. The examiner indicated that the initial August 2009 VA examination was somewhat troubling as the narrative appeared to make a diagnosis of PTSD but had insufficient data or justification to justify the diagnosis. He related that the Veteran was later seen in November 2008 by a physician on the PTSD unit at Jefferson Barracks, who indicated categorically that the Veteran did not meet the criteria for PTSD, and should therefore be referred to the Mental Health Clinic. A review of that psychiatric note in fact, indicated a diagnosis of generalized anxiety disorder with alcohol dependency problems, not enough criteria for PTSD. However, the examiner did not address in his opinion a psychiatric note made a month earlier (October 2008) wherein another VA psychiatrist evaluated the Veteran and diagnosed PTSD, chronic, severe with acute exacerbation and alcohol abuse. The Veteran refused hospitalization at that time and the examiner indicated that he did not meet the criteria for an involuntary stay. The VA examiner's November 2009 opinion was that it was less likely as not that PTSD was a correct diagnosis and this essentially resolved the question of whether a nexus could be made between the claimed stressor and PTSD. It is important to note that the same day in November 2009, another VA examiner performed a clinical interview with the Veteran to address his issues concerning anxiety. This examiner indicated, in pertinent part, that the Veteran met the criteria for PTSD, and was notably anxious, although his symptoms were best accounted for by the diagnosis of PTSD. This examiner also indicated that this diagnosis was verified by the October 2008 VA psychiatrist as well. In March 2010, the Veteran underwent a VA examination. The same examiner that provided the November 2009 psychological opinion performed the examination. The Veteran was clinically evaluated, a review of the claims file was made, and psychological testing was performed. The diagnosis was generalized anxiety disorder, panic disorder, and alcohol dependency, in early partial remission. The examiner stated that the Veteran did not have sufficient symptomatology to warrant PTSD as a diagnosis. He did have sufficient symptomatology to warrant a diagnosis of panic disorder, generalized anxiety disorder, as well as alcohol dependence in early remission. Although there was not a formal diagnosis made within one year of his service discharge, he appeared to hold a job and attend school during that period. The Veteran however, reported that he was beginning to admit or notice symptoms two years subsequent to service. He related his father noticed he was exhibiting symptoms within one year of his service discharge. The examiner stated that there was no medical evidence of record that clearly indicated that symptoms were perceived in service and the Veteran did not report them from this date. In August 2010, the examiner provided an addendum to his March 2010 VA psychological examination. The examiner added to his report that it was less likely than not that the Veteran's anxiety disorder, not otherwise specified, and panic disorder, could be attributed to his military service. He specifically stated that given that his conceded stressor was a stressor that he did not even report in his narrative at the time of the examination, it was unlikely that his stressor had enough salience to account for anxiety and panic symptoms. It is important to note that in the narrative reported during the March 2010 VA examination, indicated a complete report of the events of the conceded stressor that the Veteran had previously made and substantiated with written reports. In December 2010, J.L.L., MD a private psychiatrist, submitted a report of a psychiatric evaluation of the Veteran. Dr. J.L.L. reported that the Veteran was a Calvary scout with the Bradley Tank Unit while serving in Iraq. He noted excerpts from a book, West Point Remembers the 1991 Gulf War, wherein it is noted that the Veteran was in a combat operation. He also documented the friendly fire incident wherein the Veteran witnessed the killing of a serviceman by friendly fire. This incident has already been conceded by VA. The Veteran underwent psychological testing and clinical evaluation. Dr. .L.L. diagnosed PTSD, Iraq combat Veteran with severe anxiety and depression. Dr. J.L.L. stated that the Veteran met the criteria for PTSD with associated anxiety and depression. The level of severity was high and accounted for the marked dysfunction documented by the GAF. The PTSD Symptoms Checklist showed that the Veteran had severe PTSD and it related to his combat experience in Iraq and the persistent and progressive condition that existed to date. A statement was submitted to VA from the Vet Center in support of the Veteran's claim. The examiner stated that he evaluated the Veteran and the Veteran underwent the Mississippi Scale for Combat Related PTSD. As a result, he indicated that the Veteran met the DSM-I criteria for PTSD, secondary to combat. In May 2012, a statement was received from the Veteran's sergeant who substantiated the Veteran's claimed service in Iraq. He substantiated the two incidents the Veteran reported were his claimed stressors. The Veteran testified at a videoconference hearing in March 2013 before the undersigned VLJ. He indicated that he had submitted medical evidence from his private psychiatrist indicating that he had PTSD as a result of his service during the Gulf War. He also indicated that he presently was in treatment with the Vet Center and with VA for the same. On the basis of the evidence, the Board finds that the August 2009 rating decision granting service connection for PTSD (with anxiety, sleep disturbances, and chemical dependency). was not clearly and unmistakably erroneous. In rendering its decision, the RO utilized all the available evidence that was then of record and applied the extant law. At that time, the relevant and competent evidence of record consisted of internet articles on friendly fire and an investigative report of the incident that the Veteran claimed as one of his stressors, a memorandum verifying the Veteran's stressor, VA outpatient treatment records from August 1999 to April 2009, and an August 2009 VA examination diagnosing PTSD. The evidence indicated that the Veteran was a witness to a friendly fire incident and that he had a diagnosis of PTSD. Although the August 2009 VA examiner indicated that psychological testing was necessary to substantiate PTSD, he indeed provided a diagnosis of PTSD, although no record of the testing was associated with the claims file. However, there were also evaluations associated with the claims file (specifically October 2008 ) which were not specifically reported by the RO but which also provided a diagnosis of PTSD, and at least one other, which diagnosed generalized anxiety disorder, indicating that there was not enough criteria for a diagnosis of PTSD. At the minimum, reasonable doubt was raised, finding equipoise, in favor of the Veteran. Even considering the evidence that post-dates the award of service connection, the Board finds that the evidence does not establish that service connection is clearly and unmistakably erroneous. There are positive opinions provided by VA treatment reports, and a private psychiatrist, and negative opinions provided by VA. Reasonable minds can differ as to whether the Veteran has PTSD related to his service during the Gulf War because there is conflicting evidence of approximately the same probative value. The granting of service connection for PTSD requires weighing of the evidence. Where there is evidence supporting either finding, reasonable minds may differ on the weighing of the evidence. The Board finds that the evidence does not compel the conclusion that any of the cited medical opinions are clearly right or that any are clearly erroneous. Therefore, the Board finds that there was no error in the August 2009 rating decision that would have manifestly changed the outcome of granting service connection. Therefore, the Board finds that the evidence of record does not establish that the award of service connection for PTSD (with anxiety, sleep disturbances, and chemical dependency). was clearly and unmistakably erroneous. In the absence of such a finding, the Board concludes that the severance of the award of service connection for PTSD (with anxiety, sleep disturbances, and chemical dependency)., effective as of November 24, 2008, was improper. Reasonable doubt has been resolved in favor of the Veteran in making this decision. The Board finds that the appeal must be granted and service connection restored. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Severance of service connection not being proper, service connection for PTSD (with anxiety, sleep disturbance, and chemical dependency) is restored. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs