Citation Nr: 1429338	
Decision Date: 06/30/14    Archive Date: 07/03/14

DOCKET NO.  05-02 191	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a gastrointestinal disorder, to include sigmoid diverticulitis.  


REPRESENTATION

Veteran represented by:	Don H. Jorgensen, Esq.


WITNESSES AT HEARING ON APPEAL

Veteran and wife




ATTORNEY FOR THE BOARD

J. Honan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to March 1970 and from September 1990 to April 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2003 and February 2005 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  The April 2003 decision denied service connection for PTSD and the February 2005 decision denied service connection for sigmoid diverticulitis.    

In January 2014, the Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.

The issue of entitlement to service connection for a gastrointestinal disorder, to include sigmoid diverticulitis, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran has been competently diagnosed with PTSD as due to stressors relating to his fear of hostile military or terrorist activity. 


CONCLUSION OF LAW

The criteria for service connection for PTSD have been met.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants service connection for PTSD.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.  

Applicable Laws and Regulations

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Service connection specifically 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 in- service stressor occurred.  38 C.F.R. § 3.304(f).

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.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that 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).

Evidence and Analysis

The Veteran served in the United States Navy during the Vietnam War and the Persian Gulf War.  From January 1968 to January 1969, he reported serving aboard the U.S.S. Surfbird, which was a small ship that worked with minesweepers and was often anchored close to shore.  From this period of service, the Veteran claimed stressors that included his ship receiving fire, witnessing helicopters fire upon onshore targets, and witnessing other ships in close proximity being fired upon.  From 1990 to 1991, the Veteran served on a Mobile Inshore Undersea Warfare unit.  From this period of service, he claimed stressors that included fear of incoming Iraqi missile attacks into Eastern Saudi Arabia, and fear of chemical attacks.  He recounted one experience in particular that occurred in February 1991 when a SCUD missile struck a building in close proximity to the Veteran, with pieces of debris hitting the building in which he was located.  The SCUD attack resulted in several fatalities, and the Veteran reported fearing for his life.  

The Veteran's service records show that he was awarded the Vietnam Service Medal, the Southwest Asia Campaign Service Medal, and the Kuwait Liberation Medal.  The Veteran submitted proof of having received hostile fire pay in September 1990, and his Meritorious Unit Commendation from February 1992 stated that his unit successfully deterred the threat of terrorist or unconventional warfare actions by the enemy during the period from September 1990 to March 1991.

VA treatment records show that the Veteran was diagnosed with PTSD by a VA psychologist in September 2002, and since that time he has received individual and group therapy through VA and has taken psychiatric medications.  He has been followed by a VA psychiatrist who has consistently diagnosed PTSD during the majority of the twelve-year period on appeal.  

Pursuant to 38 C.F.R. § 3.304(f)(3), when a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the Veteran's symptoms are related to the claimed stressor, the Veteran's lay testimony alone may establish the occurrence of the in-service stressor.  In this case, the Veteran has been competently diagnosed with PTSD by a VA psychiatrist who has related the Veteran's symptoms to the claimed stressors. Although the Veteran's lay testimony with regards to his in-service stressors is sufficient on its own, the Veteran's service records additionally reflect that he was awarded the Vietnam Service Medal, the Southwest Asia Campaign Service Medal, the Kuwait Liberation Medal, and received a Meritorious Unit Commendation in February 1992.  The Veteran also submitted proof of receipt of hostile fire pay.  The Board finds these records to be additional evidence bolstering his claimed in-service stressors.    

The Board notes that the record contains a VA-contracted psychiatric examination report from August 2011 in which the examiner determined that the Veteran did not currently meet the criteria for PTSD under DSM-IV standards.  In a VA mental health note from March 2014, a VA psychologist stated that, while it was likely that the Veteran met the DSM-V criteria for a PTSD diagnosis at some point in his history, his condition had improved such that he did not currently meet the criteria.  The psychologist stated that the Veteran did meet the criteria for "adjustment disorder post traumatic type."  Nevertheless, the VA treatment records cited above clearly demonstrate that the Veteran had been diagnosed with PTSD during the course of the period on appeal.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim).

In sum, the Board finds that the criteria for PTSD are met, and therefore service connection is warranted. 


ORDER


Service connection for PTSD is granted. 


REMAND

Further development is required before the Veteran's service connection claim for a gastrointestinal disorder can be adjudicated.

According to an April 1991 treatment note, dated one month after the Veteran returned from his deployment, the Veteran reported diarrhea on and off for two weeks since returning from Saudi Arabia.  He stated that he had been given medication that had provided temporary relief, but that his symptoms had resumed.  There are no pertinent treatment records available during the period from 1992 to 2001, aside from a May 1994 progress note indicating that the Veteran did not currently have diarrhea.  In May 2002, shortly after the Veteran established care at the VA, he reported a history of chronic diarrhea since his service in the Persian Gulf.  According to an October 2002 radiology report, diverticula were present throughout the colon, and sigmoid diverticulitis was diagnosed.

The Veteran has never been afforded a VA examination for his gastrointestinal disorder.  Given the Veteran's reported history of chronic intermittent diarrhea, a medical opinion addressing the etiology of the Veteran's sigmoid diverticulitis and whether it is related to service is needed.  Such opinion must discuss whether the Veteran's reported symptoms represent the development of sigmoid diverticulitis, or whether they indicate a separate gastrointestinal condition.  The medical opinion should also specifically address whether the Veteran's reported symptoms constitute a medically unexplained functional gastrointestinal disorder separate from diverticulitis for purposes of compensation for disabilities due to undiagnosed illnesses under 38 C.F.R. § 3.317.       

Since there are no pertinent treatment notes of record during the period from 1992 to 2001, aside from the May 1994 treatment record referenced above, the Veteran should be provided an opportunity to submit any outstanding, pertinent records from this period or authorize VA to obtain such records on his behalf. 

The Board notes that although the record indicates the Veteran may be in receipt of disability benefits from the Social Security Administration (SSA), the critical question that must be answered on remand is whether there is a medical nexus between any currently-diagnosed gastrointestinal disorder and any disease or incident in service.  Because the SSA records will not address the medical nexus question with regards to VA service connection, their acquisition would not be of any benefit to the Veteran in the adjudication of this appeal. 

Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran that he may submit any outstanding, pertinent medical records dating from 1992 to 2001 or may authorize VA to obtain such records on his behalf.  Provide him with the appropriate authorization forms. 

Efforts to obtain any identified records should be documented.  
 
2.  Next, schedule the Veteran for a VA gastrointestinal disorders examination by an appropriate medical professional.  The claims file must be made available to the examiner for review in conjunction with the examination.  

The examiner should comment as to whether the Veteran's lay statements regarding experiencing chronic, intermittent diarrhea since service is consistent with the development of diverticulitis.  The examiner also should indicate whether a separate condition is causing these symptoms.  If a separate gastrointestinal disorder is present, the examiner should identify the condition.  The examiner should also comment on whether a medically unexplained, chronic functional gastrointestinal disorder (i.e. undiagnosed illness) is present.

For any gastrointestinal disorder identified, the examiner should provide an opinion as to whether it is at least as likely as not related to any incident of service. 

In forming this opinion, the examiner should consider the following:

(a) April 1991 treatment note, dated one month after the Veteran returned from a deployment, in which he reported diarrhea on and off for two weeks since returning from Saudi Arabia.  He stated that he had been given medication that had provided temporary relief, but now his symptoms had resumed.  

(b) May 1994 progress note indicating that the Veteran did not currently have diarrhea.  

(c) May 2002 VA treatment note in which the Veteran reported a history of chronic diarrhea since his service in the Persian Gulf. 

(d) October 2002 radiology report indicating that diverticula were present throughout the colon, and diagnosing sigmoid diverticulitis.

The examiner must provide a full explanation of the medical basis or bases for all opinions expressed. 

If the examiner is unable to provide an opinion without resorting to speculation, he or she must explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 

3.  Then, readjudicate the claim.  If the benefit remains denied, provide the Veteran and his representative a supplemental statement of the case.  After allowing an appropriate period of time for response, return the case to the Board. 

The Veteran has the right to submit additional evidence and argument on the matter 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).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs