Citation Nr: 1343375 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 12-01 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to service connection for a skin condition. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder. 3. Entitlement to an initial compensable rating for residuals of malaria. REPRESENTATION Appellant represented by: J. Michael Woods, Esquire ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1968, to include service in the Republic of Vietnam. His awards and decorations include a Combat Infantryman Badge (CIB). These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board recognizes that, while the Veteran originally filed a claim for service connection for PTSD, claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him.). Accordingly, the issue has been recharacterized above. The issues of entitlement to service connection for a skin condition and entitlement to an initial compensable rating for residuals of malaria are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran participated in combat. 2. The competent evidence of record is at least in equipoise as to whether the Veteran meets the criteria for a diagnosis of PTSD. 3. Resolving all reasonable doubt in the Veteran's favor, his PTSD and anxiety disorder, are as likely as not related to his combat service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability, to include PTSD and anxiety disorder, have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the favorable disposition of the Veteran's claims for service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). Service connection may be presumed for certain chronic diseases, including psychoses, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. 3.307, 3.309(a) (2013). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) , 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. 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) (2013). To have engaged in combat with the enemy, a Veteran must have participated in events constituting an actual fight or encounter with a military foe, or hostile unit or instrumentality. Mere service in a combat zone does not establish that a Veteran engaged in combat with the enemy. Service department evidence that a Veteran engaged in combat or was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); VAOPGCPREC 12-99 (1999), 65 Fed. Reg. 6257 (2000). The Veteran's DD214 reflects that he was awarded the Combat Infantryman Badge; hence, his in-service stressor events are conceded. In July 2009 the Veteran underwent a VA examination for PTSD. The examiner found that the Veteran experienced recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions, and recurrent distressing dreams of the event. The Veteran demonstrated feelings of detachment and estrangement from others as well as difficulty falling or staying asleep. The Veteran also exhibited persistent symptoms of hypervigilance. The examiner reported that the Veteran's symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functions. The examiner described the Veteran's onset of symptoms as chronic but found that his symptoms did not affect his work or social impairment, as sleeping difficulty was the only impairment he was experiencing. The VA examiner concluded that the Veteran's symptomatology did not meet the DSM-IV criteria for a diagnosis of PTSD or for any DSM diagnosis. In November 2009 the Veteran underwent a private psychological evaluation, to include various psychological tests. The Veteran reported that he had recently quit his job after 41 years due to intrusive flashbacks and anxiety-provoking dreams. The private psychologist reported the Veteran had hallucinations, illusions, and perceptual disturbances. The Veteran reported that while he did not display homicidal or suicidal ideations, he reported thoughts of hurting someone. The Veteran's mood was observed as sad and affect was flat. His emotional state was reported by the psychologist as having recurrent thoughts of hopelessness. The Veteran reported being encumbered by intrusive experiences, including nightmares, flashbacks, and upsetting memories that were triggered by current events. The Veteran described a history of aversive internal experience that he repeatedly sought to avoid and frequent attempts to eliminate painful thoughts or memories from his conscious awareness. In addition, the psychologist noted that the Veteran reported avoiding events or stimuli in his environment that may trigger upsetting thoughts or memories. The psychologist found that the Veteran experienced dissociative symptomatology, to include cognitive disengagement, depersonalization and derealization and emotional numbing. The private psychologist found that DSM-IV diagnostic impressions for an Axis I diagnosis was PTSD. In October 2011, the Veteran underwent an additional VA PTSD examination. The VA examiner noted a review of the claims file. She opined that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria based on the present examination. Specifically, his symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria and he did not have a mental disorder that confirms to DSM-IV criteria. Under criterion A, she found that the Veteran met this criteria in that he was exposed to a traumatic event where he experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and his response involved intense fear, helplessness or horror. Under criterion B, she found that the Veteran met this criteria as he persistently reexperienced recurrent distressing dreams of the event With regard to criterion C, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by 3 or more of the following is required; however, only 1, that is feeling of detachment or estrangement from others was indicated by the VA examiner. She found that the Veteran met criterion D as he had persistent symptoms of increased arousal, not present before the trauma, as indicated by irritability or outbursts of anger, difficulty concentrating, and hypervigilance. As to criterion E, the Veteran had the duration of the symptoms described above in Criteria B, C and D of more than 1 month. However, under criterion F, she found that the Veteran did not meet the full criteria for PTSD. After noting that she had reviewed the claims file, to include the private psychological evaluation in which the Veteran was diagnosed with PTSD, she conclude that while the Veteran reported some trauma symptoms, anxiety, and a sad/depressed mood, he did not meet full criteria for PTSD or another mental disorder at the time of the VA examination. Subsequently, in an addendum signed in December 2011, the VA examiner stated that she wanted to make the following changes from her initial examination in October 2011. Specifically, based on the symptoms that the Veteran reported, she was diagnosing him with anxiety disorder, not otherwise specified. She furthered that this diagnosis was based primarily on this trauma symptoms of detachment/estrangement from others, irritability, difficulty concentrating, hypervigilance, and recurring distressful dreams. She noted that while the Veteran had social impairment, it was minimal in nature. As to the first element to establish service connection for PTSD, evidence diagnosing the condition, the Board notes that there is conflicting evidence of record. Post-service VA examinations in July 2009 and again in October 2011 reflects that each examiner specifically found that the Veteran did not meet the diagnostic criteria for PTSD in accordance with DSM-IV. The October 2011 VA examiner clearly found that the Veteran did not satisfy criteria C in that the Veteran only had persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness as indicated by detachment or estrangement from others only. However, the November 2009 private psychologist examination report indicates that the Veteran made efforts to avoid thoughts, feelings or conversations associated with the trauma and made efforts to avoid activities, places or people that arouse recollections of the trauma, which would account for a finding of 3 of the symptoms necessary to satisfy criteria C (when considered in conjunction with the October 2011 VA examination report). Furthermore, the November 2009 private psychologist findings indicate that the Veteran did meet the DSM-IV criteria for a diagnosis of PTSD. Such conclusion was reached by a psychologist after an interview with the Veteran and diagnostic testing. The Board is cognizant of the Court's holding in Cohen v. Brown, 10 Vet. App. 128, 140 (1997), in which the Court held that a PTSD diagnosis by a mental health professional is generally presumed to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology as well as the sufficiency of the stressor. Given the facts of this particular case, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran has a diagnosis of PTSD in accordance with DSM-IV criteria. In addition, the private psychologist's evaluation report strongly suggests that diagnosis of PTSD is based on the Veteran's conceded stressors from combat in Vietnam. Therefore, by resolving all reasonable doubt in the Veteran's favor, the Board will grant the claim. Moreover, the Board finds that in the December 2011 VA supplemental report, the VA examiner provided a diagnosis of anxiety disorder, not otherwise specified (NOS), that she causally related to the Veteran's combat service, that is, traumatic events in service. As noted above, the Veteran's in-service stressor events are conceded as he is in receipt of a CIB. Thus, the Board finds that the evidence is at least in equipoise as to the matter of whether the Veteran has PTSD and anxiety disorder, NOS, that is related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Service connection for an acquired psychiatric disability, to include PTSD and anxiety disorder, NOS, is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder, NOS, is granted. REMAND With regard to the claim for an initial compensable rating for residuals of malaria, the Veteran was last afforded an examination in July 2009, which was in support of his initial claim for service connection. As more than four years have passed since that examination, and the Veteran contends that he has residual symptoms of fever, chills and sweating, the Board finds that a new VA examination is warranted to properly evaluate the disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous"). With regard to the claim for service connection for a skin condition, the Board notes that during a January 2008 VA agent orange registry examination, the Veteran complained of a chronic skin rash since his service in the Republic of Vietnam. He was diagnosed with moderate tinea pedis of the bilateral feet and mild in the toes. A November 2009 VA podiatry record reflects that the Veteran was diagnosed with hyperkeratosis and tinea pedia. As set forth above, the appellant is a combat Veteran and his lay statements are competent and credible to describe the circumstances and conditions active service. He is competent with regard to the onset and continuity of symptomatology. Thus, the Board finds that a remand is warranted to afford the Veteran a VA examination to determine the nature and etiology of all diagnosed skin disabilities. To ensure that all due process requirements are met, and that the record before the examiner is complete, the Veteran should be provided with another opportunity to submit information and/or evidence pertinent to the claims remaining on appeal. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his attorney a letter requesting that he provide sufficient information, and authorization, to enable VA to obtain any additional evidence, not already of record, which pertains to the claims remaining on appeal. 2. Then, schedule the Veteran for a VA examination, with an appropriate examiner, to determine the nature and severity of his service-connected residuals of malaria disability. The claims file should be reviewed by the examiner and the examiner should note that the folder was reviewed. All indicated studies should be conducted, and all findings reported in detail. The examiner should assess and fully describe any residuals of malaria, and whether or not the Veteran's malaria is in an active state at the time of the examination. A complete rationale for any opinion expressed should be provided. 3. Then, schedule the Veteran for a VA dermatological examination to determine the nature and etiology of any diagnosed skin condition. The claims file should be reviewed by the examiner and the examiner should note that the folder was reviewed. All indicated studies should be conducted, and all findings reported in detail. The examiner is requested to identify/diagnose any manifested skin disorder, and opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed skin disorder, to include tinea pedia and hyperkeratosis diagnosed during the pendency of the appeal, was incurred during or is etiologically related to the Veteran's active service, to include Agent Orange exposure in Vietnam. The examiner must discuss the Veteran's report of the onset and continuity of his symptoms since service. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation the examiner should so state and also explain why such an opinion cannot be made. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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. 2012). ______________________________________________ Lesley A. Rein Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs