Citation Nr: 1422012 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 10-21 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for psychiatric disability other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from July 1970 to July 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2011 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In January 2012, the Board reopened the claim for service connection for PTSD and remanded it for further development. Regarding characterization of the appeal, the Board points out that the United States Court of Appeals for Veterans Claims (Court) has held that a claim for service connection for PTSD encompasses all psychiatric disabilities reflected in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, although the RO only adjudicated the matter of service connection for PTSD, the Veteran also has a diagnosis of major depression. He has claimed PTSD as directly related to service. Accordingly, and consistent with Clemons, the Board has characterized the appeal as also encompassing the matter of service connection for psychiatric disorder other than PTSD. The Board's decision on the claim for service connection for PTSD is set forth below. The matter of service connection for psychiatric disability other than PTSD is addressed in the remand following the order; this matter is being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant when further action, on his part, is required. FINDING OF FACT Resolving all doubt in favor of the Veteran, PTSD is etiologically related to active military service. CONCLUSION OF LAW The criteria for the establishment of service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection for PTSD requires a medical diagnosis of the disorder; credible supporting evidence that the claimed in-service stressful events actually occurred; and a link, as established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). The regulation for PTSD were updated, effective July 12, 2010, relaxing stressor verification requirements for stressors related to a veteran's fear of hostile military activity. 38 C.F.R. § 3.304 (f), 75 Fed. Reg. 39,843 (Jul 13, 2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board initially notes that the Veteran has a medical diagnosis of PTSD and VA medical records generally document years of treatment for PTSD. Various VA medical providers have also found that the Veteran has PTSD related to his experiences while serving in Vietnam. (April 2000 VA medical provider letter, May 2000 VA medical provider letter). In an October 2008 letter (updated and resbumtted in July 2009), a VA psychologist reported that the Veteran started mental health treatment through VA in 1999 and has received subsequent treatment on an outpatient basis. The psychologist noted various symptoms associated with PTSD and the Veteran's experiences in Vietnam, including being involved in ambushes and enemy fire. In a July 2009 letter, a VA medical provider confirmed that the Veteran was attending group counseling sessions for symptoms related to PTSD, that he frequently participated in group discussions and that he was attentive to topics presented. In a June 2011 letter, another VA medical provider noted that the Veteran displayed the full range of symptoms of PTSD that began when he returned to Vietnam and was receiving ongoing therapy. In July 2013, the Veteran underwent a VA examination for PTSD. At that time, the VA examiner found that the Veteran had a diagnosis of PTSD that conforms to the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV) criteria. The VA examiner noted the Veteran's claimed stressors of witnessing other soldiers get killed or wounded in Vietnam and an accident during training when a soldier died due to a malfunctioning parachute. The July 2013 VA examiner discussed the various criteria involved with a DSM-IV diagnosis of PTSD and found that the Veteran met each criterion. The VA examiner also noted that the Veteran had over 10 years of documented treatment for PTSD, including a period as an in-patient to be worked with and intensively assessed for PTSD. The VA examiner opined that the Veteran developed PTSD in service. As to the question of whether there is credible supporting evidence that the claimed in-service stressful events actually occurred, the Veteran has provided two separate stressor reports. One of the Veteran's claimed stressor is that the flight instructor on his first training jump was injured or died due to a malfunctioning parachute (May 2002 stressor statement, June 2004 Decision Review Officer (DRO) hearing, June 2005 Board hearing and August 2011 Board hearing). The agency of original jurisdiction (AOJ) has not been able to verify that stressor. (December 2003 USACRUR Reply, June 2013 VA Memorandum). The Veteran's other claimed stressor involves his experiences while serving on temporary duty in Vietnam, including fear of hostile military activity. He has generally reported serving in Vietnam anywhere from approximately six to nine months in 1971. (June 2004 Decision Review Officer (DRO) hearing, June 2005 Board hearing and August 2011 Board hearing). In a February 2001 statement, the Veteran reported that he served with the 82nd Airborne Division and spent nine months in Vietnam with the 156th HEM Company, attached to the reconnaissance platoon and based at Marble Mountain. He reported experiencing a lot of artillery and mortar fire, as well as, seeing the deaths and crippling of many soldiers. The Veteran's DD 214 indicates that he served honorably from July 1970 to July 1973, but did not have foreign or sea service. The AOJ has also been unable to verify such service in Vietnam. (August 2004 Request for Information response, February 2009 VA Memorandum, June 2013 VA memorandum). The Veteran's service personnel records also failed to indicate service in Vietnam. The Veteran's service treatment records document treatment at various U.S. Army bases throughout his service. Those records generally show that the Veteran received treatment every month or so while in service, except for a five month gap in treatment in 1971, around the time that the Veteran has reported that he was TDY in Vietnam. During his various hearings and in his written statements, the Veteran has provided credible reports as to his service in Vietnam on TDY, including generally consistent details of how the service came about, where he was located and his duties. Indeed, during his Board and DRO hearings, the Veteran provided detailed histories as to his experiences. Similarly, the Veteran has reported detailed reports regarding his time in Vietnam to his VA medical providers. For example, in a November 21, 2008 VA medical record, the Veteran reported vivid memories regarding his time in Vietnam performing reconnaissance, as well as witnessing soldiers that were badly injured. In a February 19, 2009 VA medical record, the Veteran's physician noted that he has treated the Veteran for approximately nine years and opined that the Veteran's symptoms are consistent with his having been in Vietnam. Additionally, the physician noted that the Veteran remembered details that other veterans said only a veteran could know. Giving the Veteran the benefit of the doubt, given the credible statements as to his service and experiences in Vietnam and the other evidence of record indicative of such service, the Board finds that there is credible supporting evidence that the claimed in-service stressful events actually occurred. As there is medical evidence clearly showing that the Veteran has a medical diagnosis of PTSD and multiple, credible and probative findings by VA medical providers and the July 2013 VA examiner that the Veteran's PTSD developed due to the in-service stressors, the Board finds that service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND The Board's review of the record reveals that further RO action on the claim for service connection for a psychiatric disability other than PTSD. As noted, in this case, the record reflects a diagnosis of major depressive disorder (November 16, 2010 VA medical record)/major depression (February 19, 2009 VA medical record). In January 2012, the Board previously remanded this matter for a VA examination to determine whether the Veteran had an acquired psychiatric disorder due to service. Although the July 2013 VA examiner found that the Veteran's PTSD developed due to service, as discussed in the decision above, the VA examiner did not address the Veteran's diagnosed depression. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Inasmuch as July 2013 VA examiner did not clearly consider and discuss all pertinent evidence-to include the Veteran's previously diagnosed psychiatric disorder other than depression-and did not provide an opinion as to the etiology of such a disorder, the Board finds that the VA opinion is inadequate for the claim of service connection for a psychiatric disability other than PTSD. Accordingly, further medical opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the January 2013 VA mental disorders examiner to review pertinent evidence and provide an addendum opinion. The RO should only arrange for the Veteran to undergo further examination if the January 2013 VA examiner is unavailable, or another examination of the Veteran is deemed necessary. The Board also notes that the Veteran receives VA treatment through the SE Louisiana Veterans Health Care System and the most recent treatment records are dated in September 2011. Therefore, while on remand, VA treatment records from the SE Louisiana Veterans Health Care System, dated from September 2011 to the present, should also be obtained for consideration in the appeal. Accordingly, this matter is hereby REMANDED for the following actions: 1. The AOJ should obtain VA treatment records from the SE Louisiana Veterans Health Care System dated from September 2011 to the present. All reasonable attempts should be made to obtain such records, consistent with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all the above records have been associated with the claims file and the AOJ has provided the appropriate notice, arrange for the medical provider who conducted the July 2013 VA mental disorders examination for an addendum report. The Veteran's entire claims file, to include a complete copy of this REMAND, copies of pertinent records in the Veteran's Virtual VA file (if the examiner does not have access), must be made available to the examiner. The examiner provider should clearly identify all psychiatric disability(ies) other than PTSD deemed to exist currently, or to have validly existed (even if currently resolved) at any point since the filing of Veteran's September 2008 claim-to include depression. Then, with respect to each such diagnosed disability, the provider should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically-related to disease or injury during active duty. In rendering the requested opinions, the provider must consider and discuss all pertinent medical and lay evidence, to include the Veteran's service treatment records, VA medical records, the prior VA examination report, the private medical records, and the Veteran's assertions regarding the development of his psychological symptoms since service, and any other pertinent lay assertions. If the July 2013 VA examiner is unavailable, or further examination of the Veteran is deemed necessary, the RO should arrange for the Veteran to under VA examination, by an appropriate mental health professional, to obtain opinions responsive to the questions and comments noted above. The provider should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 3. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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. 2013). ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs