Citation Nr: 1435285 Decision Date: 08/07/14 Archive Date: 08/20/14 DOCKET NO. 10-39 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a liver disorder, to include steatohepatitis, as due to exposure to environmental hazards in Southwest Asia. 3. Entitlement to service connection for obstructive sleep apnea, to include as due to exposure to environmental hazards in Southwest Asia. 4. Entitlement to service connection for a skin disorder, to include urticaria, as due to exposure to environmental hazards in Southwest Asia. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran & C.K. ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from October 1974 to January 1977, April 2001 to May 2001, and June 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) from May 2008 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2012, the Board remanded these claims to afford the Veteran a hearing. The requested hearing was conducted in January 2013 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. The issues of entitlement to service connection for a liver disorder, and entitlement to service connection for a skin disorder, as due to exposure to environmental hazards in Southwest Asia, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence shows that the Veteran has a diagnosis of PTSD in conformance with the standards of DSM-IV; there is credible supporting evidence that a claimed in-service stressor occurred; and the medical evidence of record links the diagnosis of PTSD to the in-service stressor. 2. There is competent and credible medical and lay evidence that shows that the Veteran's obstructive sleep apnea manifested in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2013). 2. The criteria for entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Entitlement to Service Connection for PTSD The Veteran seeks entitlement to service connection for PTSD. He asserts his PTSD is a result of exposure to stressors while serving in Iraq. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The Veteran contends that service connection is warranted for PTSD as it was incurred during service in Iraq. The Veteran has described multiple stressors, including being knocked to the ground by an improvised explosive device (IED) and witnessing a burning bus with women and children trapped inside after having run over an IED. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 32 (4th ed.) (1994) (DSM IV)); 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 (unless the evidence shows that the Veteran engaged in combat and the claimed stressor is related to combat). 38 C.F.R. § 3.304(f) (2013). Effective July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: 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. The Board finds that the evidence establishes the criteria for a grant of service connection for PTSD under the old criteria. The record demonstrates a current disability as the Veteran has been diagnosed with PTSD on multiple occasions. See March 2008 VA treatment note; February 2009 PTSD Assessment Report. As for credible supporting evidence that the claimed in-service stressors occurred, the Veteran provided stressor statements in November 2008 and February 2009. In particular, the Veteran maintained that while attached to HHC Spt SQDN 278th on a convoy to Tagie in November 2004 or December 2004, he saw a burning bus which had run over an IED. Also, sometime during the period January 2005 to March 2005, while on a convoy to Andaconda and Tagie, he was exposed to an IED that knocked him to the ground but he was not hurt. The record shows the Veteran was attached to HHC Support Squadron 278th Cavalry Regiment located at Camp Caldwell, Iraq from November 2004 to November 2005. The Service Department responded that the 278th Regimental Combat Team (RCT) (also known as Armored Cavalry Regiment) took over command of Forward Operating Base Caldwell in Kirkush, Iraq on December 24, 2004 and departed on October 29, 2005. The attack and incident files (which were noted as "incomplete") indicated that on January 24, 2005, Headquarters of the 1st Battalion, 278th RCT while on a combat patrol was hit with an IED. On February 27, 2005, the 278th RCT reported an IED detonation about 30 meters in front of their lead vehicle in a convoy. The Service Department indicated that there were four battalions/squadrons in the 278th RCT. The Veteran's DD Form 214 also notes that the Veteran served in a designated imminent danger pay area. The fact that the Veteran was assigned to and stationed with a unit that was in an area known to have been exposed to IEDs suggests that his claimed stressors are consistent with the place, type, and circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). Resolving reasonable doubt in favor of the Veteran, the Board finds that the Service Department's response is sufficient credible supporting evidence that the claimed in-service stressors occurred. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Turning to the question of whether there is a nexus, or link, between the current shown disability and the in-service stressors, the record shows that the Veteran's PTSD has been linked to his experiences in service. Id. In the February 2009 Vet Center PTSD Assessment, it was noted that the Veteran was tearful when speaking of detailed and traumatic wartime events. The Veteran reported being close to explosions during his service in Iraq, as well as experiencing exposure to friendly or hostile fire, and exposure to casualties. Records indicate that the Veteran scored 130 on the Mississippi Scale for Combat Related PTSD, where the cutoff score for PTSD is set at 107, indicating that he has combat related PTSD. The scoring procedure indicates that the test correctly classifies 90 percent of all subjects. See November 2008 Scoring Procedures For the Mississippi Scale for Combat Related PTSD. VA treatment records show a diagnosis of PTSD linked to the Veteran's stressors, including exposure to IEDs and the aftermaths of IEDs. See, e.g., March 2008 and March 2009 VA treatment records. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for PTSD have been met. In so finding, the Board notes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's specific contention is that he suffers chronic mental disability from in-service stressful events. The chronic mental disability resulting from the in-service stressful events has been clinically identified as PTSD. As the Board finds that service connection is warranted for PTSD, a full grant of the benefit sought on appeal has been awarded. III. Entitlement to Service Connection for Obstructive Sleep Apnea The Veteran is currently diagnosed with obstructive sleep apnea. See April 2008 statement from Dr. B.H. The Veteran was discharged from service on December 21, 2005. A nocturnal polysomnogram conducted in October 2007 revealed severe obstructive sleep apnea. See April 2008 letter from Dr. B.H. The Veteran has asserted that he experienced sleeping problems during service. Several fellow service members have also asserted that the Veteran experienced these sleeping problems during service. Additionally, several of the Veteran's coworkers and his spouse have submitted statements indicating that the Veteran currently suffers from sleeping problems, including snoring. In an August 2008 letter, Dr. R.G. reported that the Veteran came to him for the first time while they were stationed at Camp Caldwell in Iraq in June 2005. At that time the Veteran was deeply concerned about being tired all of the time and about the loud snoring and loss of breath that his roommate had told him about on several occasions. The Veteran was told by his roommate that he had episodes in which it appeared the Veteran and quit breathing while the Veteran was sleeping. Dr. R.G. maintained that it was his opinion that the Veteran suffered from sleep apnea but there was no way to do a sleep study in a Combat Zone. The Board finds that there is competent and credible medical and lay evidence that shows that the Veteran's obstructive sleep apnea manifested in service. All the elements necessary for service connection have been met. Accordingly, service connection for obstructive sleep apnea is warranted. ORDER Entitlement to service connection for PTSD is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMAND The Veteran also seeks entitlement to service connection for a liver disorder and a skin disorder. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Importantly, the Board notes that the Veteran's personnel file indicates he was exposed to environmental hazards while serving in Iraq from November 2004 to November 2005, including human waste, indigenous plants and animals, composite material fires, petrochemical waste and fumes, gases, fumes and dust of unknown origins, blood borne pathogens, airborne pathogens and infectious diseases, including Leptospirosis, Leishmaniasis, Tuberculosis, Hepatitis, and Malaria. See DA Form 2173. Liver Disorder In March 2008, the Veteran's laboratory results indicated that he had elevated liver function tests. The impression was fatty liver. In April 2008, the Veteran's treating physician stated that the Veteran was diagnosed with steatohepatitis. A November 2008 Vet Center Intake Report indicates that there was a brick factory next to the Veteran's base camp in Iraq and that fumes from the factory are suspect for the Veteran's current liver problems. The Board notes that a DD Form 2697 dated November 2005 indicates that the Veteran served next to a brick factory while at Camp Caldwell in Iraq and was exposed to crude oil and black smoke for 24 hours a day, for the duration of a year. To date, the Veteran has not yet been afforded a VA examination for his liver disorder. As the evidence indicates there is a possible relationship between his time in service, including his documented exposure to environmental hazards, and his current liver disorder, the Board finds a remand is necessary to afford the Veteran a VA examination and to obtain a medical opinion regarding the nature and etiology of his claimed disorder. Skin Disorder The Veteran has been diagnosed with chronic autoimmune urticaria with severe dermographism, with elevated antibody to IgE receptor on mast cells. See June 2009 VA Outpatient Note. A fellow service member has asserted that the Veteran, as well as two other soldiers, worked and lived in the unit's maintenance facility in Iraq, which was built by the Iraqi Army in the early 1980's. The service member indicated that it was unknown what the building was used for previously or what was previously stored in it, but all three soldiers that worked there experienced various skin rashes and hives at the time. See May 2009 statement from S.S. To date, the Veteran has not yet been afforded a VA examination for his skin disorder. The Board finds a remand is necessary to afford the Veteran a VA examination and to obtain a medical opinion regarding the nature and etiology of his claimed disorder. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran a VA examination for his liver disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner must be provided the claims folders and a copy of this Remand. a) All current liver disorders should be diagnosed. For each liver disorder diagnosed, the examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's liver disorder is causally or etiologically due to service, to include the documented exposure to environmental hazards in Southwest Asia. The examiner must offer comments and an opinion to the November 2008 statement from the Vet Center Report that fumes from a brick factory next to the Veteran's base camp in Iraq are suspect for the Veteran's current liver problems, and offer comments and an opinion on the theory that exposure to crude oil and black smoke caused the liver condition. The examiner is advised that the Veteran's personnel records indicate that during service in Iraq he was exposed to human waste, indigenous plants and animals, composite material fires, petrochemical waste and fumes, gases, fumes and dust of unknown origins, blood borne pathogens, airborne pathogens, and infectious diseases, including Leptospirosis, Leishmaniasis, Tuberculosis, Hepatitis, and Malaria. Personal hygiene with nonportable water was conducted throughout his one year deployment. In providing these opinions, the examiner must acknowledge and discuss any lay evidence of chronicity of symptoms. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 2. Afford the Veteran a VA examination for his skin disorder, to include urticaria. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner must be provided the claims folders and a copy of this Remand. All current skin disorders should be diagnosed. For each skin disorder diagnosed, the examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's skin disorder is causally or etiologically due to service, to include the documented exposure to environmental hazards during service. The examiner is advised that the Veteran's personnel records indicate that during service in Iraq he was exposed to human waste, indigenous plants and animals, composite material fires, petrochemical waste and fumes, gases, fumes and dust of unknown origins, blood borne pathogens, airborne pathogens, and infectious diseases, including Leptospirosis, Leishmaniasis, Tuberculosis, Hepatitis, and Malaria. Personal hygiene with nonportable water was conducted throughout his one year deployment. In providing these opinions, the examiner must acknowledge and discuss any lay evidence of chronicity of symptoms. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 3. After completion of the above, the RO/AMC must readjudicate the claims. If the issues remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. 4. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs