Citation Nr: 1505854 Decision Date: 02/09/15 Archive Date: 02/18/15 DOCKET NO. 11-08 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and depressive disorder. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 and April 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The November 2010 rating decision denied the Veteran's claims for entitlement to service connection for an acquired psychiatric disorder and a gastrointestinal disorder. The April 2013 rating decision denied the Veteran's claim for entitlement to service connection for PTSD. In October 2011, the Veteran testified at a hearing before a Decision Review Officer. In October 2014, the Veteran testified before the undersigned at a video teleconference hearing. Copies of the transcripts of both hearings have been associated with the claims file. As an initial matter, the Board notes that the Veteran has changed his representative on several occasions during the course of his appeal. Specifically, when the Veteran filed his claims for service connection in the instant appeal, he was represented by Jan Dils, Attorney at Law. Thereafter, in March 2014, the Veteran revoked this representation by submitting a VA Form 21-22a (Appointment of Individual as Claimant's Representative) designating Disabled American Veterans as his representative. Subsequently, on October 7, 2014, the Veteran submitted another VA Form 21-22a again designating Jan Dils as his representative. In this regard, the Board is cognizant that an appellant is granted a period of 90 days following the mailing of notice that an appeal has been certified to the Board and the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board, whichever comes first, during which he or she may submit a request for a change in representation. 38 C.F.R. § 20.1304(a) (2014). Here, according to the Veterans Appeals Control and Locator System, the Veteran was notified in a letter dated September 23, 2014, that his appeal had been certified and transferred to the Board. See 38 C.F.R. § 19.36 (2014). As such, because the Veteran submitted his October 2014 VA Form 21-22a again designating Jan Dils as his representative within the 90-day grace period following the mailing of notice that his appeal had been certified and transferred to the Board, his request for a change in representation is found to be timely and the Board accepts and recognizes the current change in representation. Accordingly, the Veteran's representative is as listed on the cover page. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. The issue(s) of entitlement to service connection for PTSD and for a gastrointestinal disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder, to include anxiety disorder and depressive disorder, did not clearly and unmistakably pre-existed his period of active duty service from November 1965 to December 1968. 2. The evidence is at least in relative equipoise as to whether the Veteran's acquired psychiatric disorder, to include anxiety disorder and depressive disorder, was incurred in service. CONCLUSIONS OF LAW 1. The presumption of soundness has not been rebutted with regard to the Veteran's acquired psychiatric disorder, to include anxiety disorder and depressive disorder. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2014). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for an acquired psychiatric disorder is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. The Veteran essentially contends that service connection for an acquired psychiatric disorder is warranted because his depression and anxiety started during service and has continued since. See, e.g., Board Hearing Tr. at 22. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As an initial matter, a Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, the Veteran's September 1965 enlistment examination shows that no psychiatric disorder was identified. Therefore, the presumption of soundness attaches with respect to this portion of the claim, see 38 U.S.C.A. § 1111, and the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disorder was both pre-existing and not aggravated by service. Based on the medical evidence and the Veteran's statements, the Board concludes that there is no clear and unmistakable evidence that the Veteran's acquired psychiatric disorder pre-existed his period of active duty service from November 1965 to December 1968. In making this determination, the Board notes that, in a May 1968 service treatment record, the Veteran complained of having a 5 to 10 year history of a nervous stomach, noting that in times of stress, he would react by vomiting. Similarly, during an in-service hospitalization for personality pattern disturbance in August 1968, the Veteran reported having difficulty with nausea and vomiting since playing basketball in high school at the age of 17. See September 1968 service treatment record. In this regard, the Veteran reported that, during high school, a local physician had informed him that his stomach had been due to nerves. Significantly, however, other than these two instances of the Veteran's own self-reports of a nervous stomach, the medical evidence does not otherwise show that the Veteran had a diagnosed psychiatric disorder prior to enlistment in service. Indeed, the Veteran's September 1965 enlistment examination did not note that the Veteran had a pre-service history of any psychiatric disorder, and on his Report of Medical History, the Veteran affirmatively denied having any nervous trouble, depression, or excessive worry. Similarly, on VA examination in October 2010 and January 2011, as well as on private psychiatric examination in December 2010, the Veteran did not report a pre-service history of a psychiatric disorder. In this regard, the Board acknowledges that, on VA examination in October 2010 and January 2011, the VA examiners determined that the Veteran's generalized anxiety disorder had been present prior to service, but this determination appeared to be based solely on the Veteran's self-reports of a nervous stomach during in-service treatment in May 1968 and September 1968. On this record, the Board finds that there is no clear and unmistakable evidence showing that the Veteran had an acquired psychiatric disorder prior to service, much less a specific diagnosis of an anxiety disorder and/or depressive disorder. Accordingly, the Board finds that this high legal standard has not been met with regard to whether the Veteran's acquired psychiatric disorder preexisted his period of active duty service from November 1965 to December 1968. As the Board finds that there is no clear and unmistakable evidence that the Veteran had an acquired psychiatric disorder that existed prior to service, the presumption of soundness has not been rebutted in this case. See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b); VAOPGCPREC 3-2003 (July 16, 2003). As the presumption of soundness has not been rebutted with regard to the Veteran's acquired psychiatric disorder, the Veteran's claim becomes one of direct service connection, without consideration of aggravation of a pre-existing condition. See Wagner, 370 F.3d at 1094-96 (holding that where the presumption of soundness is not rebutted, a claim for service connection based on aggravation is converted into a claim for service connection based on service incurrence). In the present case, the Board finds that the Veteran has current disabilities of anxiety disorder and a depressive disorder. See October 2010 VA examination (finding that the Veteran had an Axis I diagnosis of generalized anxiety disorder); see also December 2010 private medical examination (finding that the Veteran had Axis I diagnoses of depressive disorder and anxiety disorder); see also January 2011 VA examination (finding that the Veteran had an Axis I diagnosis of adjustment disorder with mixed anxiety and depressed mood). As such, the first element required for service connection has been established. Turning to the second element required for service connection, there is competent and credible evidence of record regarding the Veteran's in-service depression and anxiety symptomatology, as well as treatment for such symptoms. Specifically, service treatment records reveal that, in May 1968, the Veteran was treated for somewhat flattened affect and blandness, as well as a decreased ability to concentrate. Additionally, in a June 1968 treatment report, the Veteran was diagnosed and treated for passive dependent personality trait disturbance with acute and chronic anxiety. Further, a September 1968 service treatment record indicates that the Veteran was hospitalized for 18 days in August 1968 for personality pattern disturbance, inadequate personality. Finally, a December 1968 service personnel record shows that the Veteran was diagnosed with inadequate personality and was found to be unfit for further military duty. On this record, the Board concludes that the second element has also been satisfied. Turning to the third element of whether there is a nexus, or link, between the current shown disability and service, the Board finds that the evidence of record is, at least, in relative equipoise. In making this determination, the Board acknowledges that there are conflicting medical opinions of record regarding whether the Veteran's acquired psychiatric disorder is causally related to his military service. In support of the Veteran's claim, in December 2010, after conducting an in-person examination of the Veteran, Dr. J.R.A. diagnosed the Veteran with depressive disorder and anxiety disorder, and provided the opinion that the Veteran's chronic depression with anxiety began during service. In support of this opinion, Dr. J.R.A. noted that the Veteran had experienced problems with his stomach in service that had necessitated him being sent for a psychiatric evaluation and reported that the Veteran was evaluated in the psychiatric ward during service. The Board finds this opinion to be probative as to etiology of the Veteran's psychiatric disorder, as Dr. J.R.A. discussed the Veteran's pertinent medical history, considered his lay statements, and provided a cogent rationale/explanation. In contrast, at the time of his October 2010 VA examination, the examiner provided the opinion that the Veteran's generalized anxiety disorder was not caused by or a result of the Veteran's service. In rendering this opinion, the examiner explained that the Veteran had apparently struggled with anxiety and gastrointestinal issues associated with his anxiety since his teen years and cited to medical literature indicating that anxiety was a trait with a familial association, noting that the Veteran's mother had "worried a lot." Similarly, at his January 2011 VA examination, the examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood, and provided the opinion that the Veteran's current anxiety symptoms were not related to the diagnosis of passive-dependent personality trait disturbance with anxiety while in service. She also concluded that the Veteran's current symptoms did not represent an aggravation of symptoms present prior to service. In support of this opinion, the examiner explained that the Veteran's military records indicated that his in-service anxiety had its onset prior to service and had continued during service. Moreover, she reported that there was no evidence that the Veteran's symptoms before and during service were in any way related to the Veteran's current symptoms. In this regard, the examiner found that the current symptoms were instead related to current life stressors, noting that there had been no continuum of treatment suggesting that the current condition was related to the condition treated during service. In considering the various medical opinions of record, the Board finds the October 2010 and January 2011 VA medical opinions to be less probative than the December 2010 opinion of Dr. J.R.A. as to the etiology of the Veteran's acquired psychiatric disorder, as these opinions appear to be based on an inaccurate factual history. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet. App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background). Specifically, although as discussed above, the Veteran's acquired psychiatric condition is found not to have pre-existed service, both the October 2010 and January 2011 VA medical opinions are based on a finding that the Veteran's depression and anxiety symptoms pre-existed service. Moreover, the January 2011 VA opinion was also based, at least in part, on the fact that the Veteran had not been treated for any psychiatric disorder between 1968 and 2007. Notably, however, the medical evidence clearly shows that the Veteran periodically received post-service treatment for depression, anxiety, and mood disorder since 1981. See, e.g., Dr. K.D.G.'s October 2011 statement. Accordingly, in considering the evidence of record, the Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran's acquired psychiatric disorder had its onset during his period of service. Therefore, because the Board concludes that all three elements required to establish entitlement to service connection have been met, the Board finds that service connection for an acquired psychiatric disorder, to include anxiety disorder and depressive disorder, is warranted and the claim is granted. See 38 C.F.R. § 3.303. Reasonable doubt has been resolved in favor of the Veteran in this matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and depressive disorder, is granted. REMAND Although the Board regrets the additional delay, further development is needed prior to disposition of the claims for entitlement to service connection for PTSD and a gastrointestinal disorder. The Board will discuss each of its reasons for remand in turn. I. Stressor Verification The Board finds that further efforts to corroborate the Veteran's reported in-service stressor should be undertaken before the Board renders a decision in this case. In this regard, the Board notes that the Veteran essentially contends that he has PTSD a result of an experience during service, when his unit flew to Fort Campbell, Kentucky, to assist with the recovery of seven bodies from an airplane crash. The Veteran's service personnel records show that his military occupational specialty was that of aircraft maintenance. These records also show that the Veteran served at the Sewart Air Force Base in Tennessee in the 62nd Troop Carrier Squadron from November 1, 1966, to December 12, 1966, and in the 64th Field Maintenance Squadron beginning on December 13, 1966. See Veteran's DD Form 214 and Chronological Listing of Service. A March 2013 response from the Joint Services Records Research Center (JSRRC) indicates that the history of the Veteran's unit-the 64th Tactical Airlift Wing (the higher headquarters for the 64th Field Maintenance Squadron)-from October 1967 to December 1967 was negative for any fatal aircraft accidents at Fort Campbell in Kentucky. According to this response, the unit's history only revealed a minor aircraft accident on November 20, 1967, involving a brake fire following landings during training; however, no injuries had resulted from this minor accident. Significantly, however, in November 2014, the Veteran submitted a request via his representative for the flight log of the C130 Hercules Plane #57513 for the period from November 1, 1966, to December 31, 1966. Given that the Veteran has submitted additional information pertaining to his claimed stressor, further attempts to confirm this stressor should be accomplished on remand. II. VA Examination With respect to the gastrointestinal disorder, the Veteran contends that this disorder is caused or aggravated by his acquired psychiatric disorder, to include anxiety disorder. The Board notes that as a result of the above decision, service connection has been granted for an acquired psychiatric disorder, to include anxiety disorder and depressive disorder. The Board finds that a VA medical opinion assessing whether the Veteran has a gastrointestinal disorder that is aggravated by his now service-connected acquired psychiatric disorder, is needed in this case. In making this determination, the Board acknowledges that the Veteran was afforded VA examinations in August 2010 (with an addendum opinion obtained in September 2010) and January 2011. At the time of the August 2010 VA examination, the examiner provided the opinion that it was less likely than not that the Veteran's hiatal hernia and resultant gastroesophageal reflux disease (GERD) were caused by or related to anxiety because it was a structural problem. In doing so, the examiner stated that GERD was related to his large hiatal hernia, which was a structural problem with the stomach and lower esophageal sphincter. Additionally, in a subsequent September 2010 addendum opinion, the August 2010 VA examiner reiterated that it was less likely than not that the Veteran's hiatal hernia or resultant GERD were caused by or related to anxiety. In this regard, the examiner explained that anxiety did not cause physical structural changes of the stomach or esophagus. Thereafter, at the Veteran's January 2011 VA examination, the examiner diagnosed the Veteran with a large hiatal hernia, noting that there was no evidence of current peptic ulcer, which had likely healed. She then went on to provide the opinion that the Veteran's large hiatal hernia, which resulted in GERD, was not caused by or related to anxiety disorder. Significantly, however, although the August 2010 and January 2011 VA examiners provided medical opinions regarding whether the Veteran's gastrointestinal disorder is proximately due to or the result of his anxiety disorder, neither physician provided an opinion as to whether the Veteran's gastrointestinal disorder was aggravated by his anxiety disorder. 38 C.F.R. § 3.310 (2014); Allen v. Brown, 7 Vet. App. 439 (1995). As such, the claims file should be returned to the January 2011 VA examiner, if available, in order to obtain an opinion regarding whether the Veteran's gastrointestinal disorder has been aggravated (permanently worsened beyond normal progress of the disorder) by his now service-connected anxiety disorder. Accordingly, given the complicated nature of the Veteran's disability picture, and because the record contains insufficient medical evidence to determine the etiology of his currently diagnosed gastrointestinal disorder, the Board finds that VA medical opinion is necessary to resolve any inconsistencies in the record and to fully assess whether the Veteran's gastrointestinal disorder is aggravated by his now service-connected acquired psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). III. Treatment Records As this case must be remanded for the foregoing reasons, on remand, copies of any outstanding private and/or VA treatment records regarding the Veteran's gastrointestinal disorder and/or PTSD should also be obtained. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c). In this regard, the Board notes that the most recent VA treatment records on file are dated in April 2014. Additionally, the most recent private treatment records on file are from (1) Methodist Hospital of Kentucky, dated in November 1993; (2) Pikeville Methodist Hospital, dated in March 1997; and (3) St. Joseph Hospital, dated in October 2002. Finally, the Board notes that, in an October 2011 statement, Dr. K.D.G. reported that she had treated the Veteran's psychiatric disorders and ulcer disease from 1981 to 1996. Significantly however, to date, these records have not been associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any records regarding the Veteran's VA treatment for PTSD and/or gastrointestinal disorder dated since April 2014, following the procedures set forth in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. With any necessary assistance from the Veteran, obtain all outstanding private records pertaining to the Veteran's treatment for PTSD and/or gastrointestinal disorder, to specifically include records from: (a) Dr. K.D.G. from 1981 to 1996; (b) Methodist Hospital of Kentucky dated since November 1993; (c) Pikeville Methodist Hospital dated since March 1997; and (d) St. Joseph Hospital dated since October 2002. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records himself, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Undertake appropriate development through official sources, including the Joint Services Records Research Center (JSRRC), to obtain the flight logs of the C130 Hercules Plane #57513 from November 1, 1966, to December 31, 1966. In this regard, the Board reiterates that it is particularly interested in any information confirming whether an airplane crash occurred between November 1, 1966, and December 31, 1966, at Fort Campbell, Kentucky, in which the Veteran's unit assisted with the recovery of bodies. In requesting this information, the Board notes that the Veteran served at the Sewart Air Force Base in Tennessee in the 62nd Troop Carrier Squadron from November 1, 1966, to December 12, 1966, and in the 64th Field Maintenance Squadron beginning on December 13, 1966. All efforts to retrieve this information should be documented in the claims. If these records are not available, a negative reply must be provided. Additionally, if these records are unavailable, the Veteran should be notified in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. The record should be returned to the physician who conducted the Veteran's January 2011 VA gastrointestinal examination for an addendum opinion. The entire claims file, as well as a copy of this Remand, should be made available to and reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner should once again review the claims file and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected acquired psychiatric disorder, to include depressive disorder and anxiety disorder, aggravated the claimed gastrointestinal disorder. In this special context, "aggravation" has occurred when it has been medically determined that the claimed condition has undergone an identifiable permanent increase in severity that was proximately due to or the result of the Veteran's acquired psychiatric disorder, to include depressive disorder and anxiety disorder. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. In this regard, it is essential that the examiner carefully explain why and how all conclusions and opinions were reached. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the January 2011 examiner is no longer available, then the requested opinion with rationale should be rendered by another qualified examiner. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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 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 2014). ______________________________________________ NICOLE KLASSEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs