Citation Nr: 1537186 Decision Date: 08/31/15 Archive Date: 09/04/15 DOCKET NO. 11-09 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran had active military service from May 1969 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and May 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In February 2010, the RO denied the Veteran's petition to reopen a previously denied claim of service connection for an acquired psychiatric disorder. In the May 2010, the RO denied what it characterized as a separate claim for service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record, i.e., that matters of service connection for diagnosed psychiatric disabilities other than PTSD are part and parcel of a service connection for PTSD claim. In April 2014, the Board reopened the claim for service connection for an acquired psychiatric disability and remanded the claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. As explained in the decision below, the Board now finds that evidence of record is sufficient to grant service connection for an acquired psychiatric disability, other than PTSD, but that further development is required regarding the claim for service connection for PTSD. As such, the issues have been separated on the title page. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The record contains competent medical evidence that the Veteran has a current acquired psychiatric disability, other than PTSD, that at least as likely as not had onset in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for an acquired psychiatric disorder, other than PTSD, have been met. 38 U.S.C.A. § 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duty to Notify and the Duty to Assist VA has a duty to notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and need not be discussed further. II. Entitlement to Service Connection In order to establish service connection for the claimed disorder, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran contends he has a psychiatric disorder due to receiving news during active duty that several of his comrades died in an automobile accident; the Veteran was supposed to be in the car with his friends and he afterward learned they had all been killed. The Veteran states that the wrecked vehicle was put on display at the entrance to the air force base where he was stationed. The Veteran alleges that "caused him considerable anguish to see the constant reminder, not only of the loss of his friends, but his own escape." See March 2013 Dr. F. Examination Report. The Veteran alleges that the incident resulted in feelings of anger, tension, anxiety and depression that he still experiences today and caused him to self-medicate with alcohol and drugs for many years. While on active duty, the Veteran was trained in communications and attempted cross-training in Air Traffic Control (ATC). In January 1973 and March 1973, he was counseled for tension headaches, anxiety and insomnia; a military psychiatrist recommended that he should be disenrolled from ATC school for medical reasons. Although the Veteran's separation examination did not indicate a diagnosed psychiatric disability, the accompanying report of medical history indicated frequent trouble sleeping and nervous trouble, although it was noted that he had "no further complications, no sequelae" following his disenrollment from ATC school. Following service, the evidence suggests the Veteran struggled with alcohol and drug addiction for many years. Medical records show the Veteran was hospitalized for alcohol abuse in March 1982 and indicated a long history spanning more than a decade. The Veteran initiated a claim for service connection for chronic anxiety neurosis (also claimed as depression) which was denied in 1983. The RO found that the Veteran had not established that his in-service treatment for psychiatric problems represented a chronic psychiatric disability that continued after his separation from service. The Veteran filed several claims to reopen that were denied until the Board reopened the claim based on evidence provided regarding the alleged in-service accident and medical opinions that appeared to support the claim. In February 2010, the Veteran was referred for an evaluation of possible PTSD by his primary care provider. He referred to an event which he stated "continues to impact him to this day." He reported that in 1971 he and some friends were to go to a club and that his friends left without him. On their return to base in the early hours of the morning, the friends were in an accident in which their car collided with a truck and the roof was torn off their vehicle. The Veteran indicated that although he did not witness the event, it was described to him in detail by others; he read about the event in the newspapers; and the car was kept on base near the entrance and seen by the Veteran on a daily basis. The Veteran indicated he responded to the event with helplessness and horror and shortly afterwards began to drink heavily and have marital problems. He also reported ongoing problems with anger management that had not existed prior to the accident. Following psychological testing, the examiner indicated that the Veteran's symptomatology was not "clearly consistent with a diagnosis of PTSD." It was indicated he may have met the criteria for a diagnosis of PTSD in the past and that there were anxiety symptoms present, "likely related to the car accident and also to his current health issues." The examiner diagnosed anxiety disorder NOS, cocaine and alcohol dependence, likely early full remission, and depressive disorder NOS. In March 2013, the Veteran was assessed by a private psychiatrist. Dr. F. diagnosed generalized anxiety disorder, chronic, severe, depressive Disorder NOS and polysubstance dependence, in sustained full remission. Dr. F. also noted "posttraumatic traits." Following interview of the Veteran, Dr. F. opined that there "is clear evidence from the military record that the veteran developed significant anxiety while attempting Air Traffic School." He opined that the anxiety was exacerbated by recollections of an event in the military "when [the Veteran] escaped the high likelihood of death from a motor vehicle accident involving the death of friends." Based on the Veteran's statements, Dr. F. indicated that this anxiety resulted in "self-medication" through the excessive use of drugs and alcohol. As to a relationship between the Veteran's anxiety and service, Dr. F. opined that the Veteran's current anxiety disorder "is one which - more likely than not [emphasis in original] - is an extension of the anxiety condition developed while in the Air Force . . .". Upon review of the lay and medical evidence, the Board finds it reasonable to conclude that the February 2010 and March 2013 examinations support a link between the symptoms exhibited in service and diagnosed psychiatric disorders present today. This conclusion is supported by the Veteran's change in behavior in early January 1973 and his long history of alcohol and drug abuse which Dr. F. found resulted from anxiety felt in service that was exacerbated, if not caused, by hearing about the death of his friends. Notably, the Court of Appeals for Veterans Claims has held that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, because there is persuasive evidence that the Veteran's current disability had its onset in service, the Board finds that the preponderance of the evidence is not against the claim. As such, the benefit of the doubt doctrine applies and must be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Based on the foregoing, the Board concludes that service connection for an acquired psychiatric disorder is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed as anxiety disorder NOS, generalized anxiety disorder and depressive disorder NOS, is granted. REMAND Following a remand in April 2014, the Board instructed further development of the Veteran's claim for service connection for PTSD, to include providing the Veteran an additional opportunity to provide corroboration of his alleged in-service stressor in addition to his lay statements. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., the diagnosis must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and must be supported by findings on the examination report; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy" as established by official records, including recognized military combat citations, or other supportive evidence. If the VA determines that the veteran engaged in combat with the enemy and the alleged stressor is combat-related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the VA determines that the veteran did not engage in combat with the enemy or that the veteran engaged in combat with the enemy, but the alleged stressor is not combat-related, the veteran's lay testimony, by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128, 142 (1993). This credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). The regulations pertaining to PTSD were recently amended and 38 C.F.R. § 3.304(f)(3) no longer requires the verification of an in-service stressor if the stressor involved "fear of hostile military or terrorist activity." Rather, lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. In this case, there is no evidence the Veteran served in combat or that his alleged stressor is related to fear of hostile military or terrorist activity. Therefore, the record must contain credible supporting evidence that corroborates the Veteran's statements that he learned of the death of three of his friends in an automobile in which he was supposed to have been riding. Following the remand, the Veteran submitted various e-mail correspondence attempting to gather information regarding the date and details of the accident and the individuals who were killed. The VA made several attempts to verify whether certain individuals died in a car accident between 1970 and 1972 while stationed at Chicksands Air Force Base. VA was unable to independently verify that the accident occurred. As explained in the decision granting service connection for a psychiatric disorder, other than PTSD, while on active duty, the Veteran was counseled for tension headaches, anxiety and insomnia; a military psychiatrist recommended that he should be disenrolled from ATC school for medical reasons. At his meeting with the military psychiatrist in March 1973, it is unclear whether the Veteran mentioned the automobile accident. He indicated anger and aggression toward some supervisors. The Veteran also reported feeling "hassled by service in general". He stated that he received a "threatening letter to destroy some equipment and was frightened for his family since 3 dudes (friends) killed in unusual auto accident shortly before . . ." The psychiatrist's impression was "paranoid, moderate." In September 2014, following the Board's remand, the Veteran underwent a VA examination. The examiner diagnosed PTSD based on the Veteran's statements regarding his alleged in-service stressor. The examiner determined that the stressor, as described by the Veteran, met Criterion A under the DSM-V and was adequate to support a diagnosis of PTSD. The examiner opined that the Veteran's alleged stressor met Criterion A because he learned of the tragic death of military comrades and he was "horrified, terrorized, and traumatized from the news". The examiner provided a positive nexus opinion stating that PTSD was due to learning of the death of comrades in an automobile accident during active duty service. In the November 2014 supplemental statement of the case, the RO explained the missing element necessary to grant service connection for PTSD was corroborating evidence of the occurrence of the automobile accident other than the Veteran's lay contentions. There is evidence provided in e-mails that the accident did occur, although the evidence was not sufficient to verify the fact of its occurrence. There is also evidence the such incident, if it did occur as alleged by the Veteran, affected his psychological well-being and may have led to many years of substance abuse and anxiety. In March 2015, the Veteran provided additional evidence regarding the stressor that had not been previously considered. He submitted e-mail correspondence indicating that the accident occurred on December 29th at 5:00 AM, although a year was not specified. In addition, the correspondence indicated the passengers were K. W. (then 22), R.T. (then 26) and G.W. (then 21). It was indicated that the accident occurred about a mile from the Chinksands Air Force Base. The car was a VW Beetle that hit black ice and went underneath a truck. The e-mail indicated that G.W. is buried in Highland Park Cemetery in Cayahoga, Ohio and R.T. is buried in Salisbury National Cemetery in Salisbury, North Carolina. Based on this evidence, further development of the alleged stressor must be completed by the RO before final adjudication of the claim for service connection for PTSD. Accordingly, the case is REMANDED for the following action: 1. Associate all outstanding VA treatment records with the electronic claims file. 2. Perform further development to confirm the stressor that the September 2014 VA examiner found supported a diagnosis of PTSD, specifically that the Veteran learned about the death of three of his fellow soldiers in an automobile accident in a car in which he was supposed to be traveling. The RO should follow up on information provided in a March 2015 e-mail correspondence. Therein, the Veteran indicated that the accident occurred on December 29. Although a year was not provided, other evidence suggests it may have been 1971 or 1972. In addition, the Veteran provided names of the victims and the place where two of them were buried and their ages at the time of the accident. 3. When the development requested has been completed, the case shall again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran shall be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned 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 2014). ______________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs