Citation Nr: 1550091 Decision Date: 11/30/15 Archive Date: 12/04/15 DOCKET NO. 14-07 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a respiratory disorder, to include asthma. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to September 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran requested a Travel Board hearing in his February 2012 substantive appeal. However, he withdrew his Travel Board hearing request in correspondence dated in September 2015. The issue of entitlement to service connection for a respiratory disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his PTSD is a result of a verified in-service stressor. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 101(24), 1101, 1112, 1113, 1116, 1131, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.304(f) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the Veteran of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2015). Given the favorable disposition of the claim decided herein, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of entitlement to service connection for an acquired psychiatric disorder. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence of a current diagnosis of PTSD, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link between the current diagnosis and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Effective July 13, 2010, the regulations governing adjudication of service connection for PTSD were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in-service stressor. For cases pending before VA as of that date, the following regulation applies: 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) (2015); see 75 Fed. Reg. 39843 (July 13, 2010). Resolving all reasonable doubt in the Veteran's favor, the Board determines that the Veteran has PTSD as a result of a reported in-service stressor. The Veteran's service personnel records reveal that his military occupational specialties included explosive ordinance disposal technician and aircraft armament systems specialist. The Veteran was provided with a VA PTSD examination in December 2011, at which time he reported that he responded to a Fokker F.III airplane crash at an airbase in New Mexico in 1978. The Veteran indicated that he was sent ahead to identify any possible explosives material, at which time he was in close proximity to pressurized gas as well as unexploded ordnance, and uncovered physical human remains. He described his main reaction as "shock and amazement", as well as anger because he felt that the crash could have been prevented (he found a socket wrench at the crash site and believed that someone may have left it in the aircraft causing the crash, but when he reported it to superiors they threatened his career). Additionally, the Veteran reported that an LTV A-7 Corsair II airplane crash occurred in Thailand while he was stationed there, but denied being directly involved in the incident and did not report feelings of fear, horror, or helplessness. Finally, the Veteran described that he also dealt with an aircraft flare that had been dropped on the ground which detonated as he was about to pick it up, inflicting minor burns to himself and others. Again, he did not describe feelings of fear, horror, or helplessness, but rather reported anger, as he felt he was scapegoated for the incident and that it was actually superior officer's fault. The December 2011 VA examiner found that the Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (the aftermath of the Fokker F.III airplane crash), and that his response involved intense fear, helplessness, or horror. However, the VA examiner additionally found that the in-service traumatic event was not persistently reexperienced. As such, the VA examiner concluded that the Veteran did not meet the full criteria for PTSD. The Board finds that this stressor (the aftermath of the Fokker F.III airplane crash) is consistent with the circumstances of the Veteran's service. Therefore, the Veteran's lay statements may establish the occurrence of the claimed in-service stressor. As for whether the Veteran has a current diagnosis of PTSD, the Board determines that the evidence is in equipoise. As discussed above, the December 2011 VA examiner concluded that the Veteran did not meet the full criteria for PTSD. The examiner explained that the Veteran did not report significant PTSD symptomology, and that although he did describe some worry about financial stressors (apparently caused by his daughter) and work-related stress due to difficulty with his management, he did not describe full symptoms of an anxiety disorder. By contrast, in correspondence dated in September 2015, the Veteran's private clinical psychologist indicated that the Veteran had been seen at a private clinic since September 2011 and first underwent psychological evaluation in January 2013. During that time, the private clinical psychologist opined that the Veteran had exhibited a number of emotional, behavioral, and cognitive symptoms consistent with PTSD, such as problems in concentration and mental focus, emotional numbing and avoidance, obsession with harm and adverse outcomes, and cynicism as well as suspiciousness regarding the behavior of authorities tasked with maintaining safety protocols. The psychologist indicated that this pattern of emotions, cognitions, and behaviors was likely the result of PTSD stemming from his years of military service, including bomb disposal missions, investigating and cleaning up the sites of fatal plane crashes, and notifying families of the loss of their loved ones as well as transporting soldiers' remains to their families. Therefore, given the pattern of symptoms that were consistent with PTSD, the Veteran's history of exposure to traumatic stressors while in the military, and the absence of exposure to traumatic stressors in other settings, the private clinical psychologist opined that it was at least as likely as not that he was currently suffering from PTSD as a consequence of traumatic incidents that occurred during his military service. In light of the above, the Board determines that it is at least as likely as not that the Veteran has a diagnosis of PTSD as a result of a verified in-service stressor. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). It is important to point out at this juncture that it is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Accordingly, entitlement to service connection for PTSD is granted. With respect to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, the United States Court of Appeals for Veterans Claims has held that an appellant does not file a claim to receive benefits only for a particular diagnosis, but for the symptoms of his mental condition, whatever it is. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, while the Veteran had diagnoses and symptoms of anxiety, somatoform disorder, and bipolar disorder, the Board has determined that PTSD is the diagnosis appropriate to the Veteran's symptoms for the purposes of this decision. Moreover, the Veteran has claimed only that he has an acquired psychiatric disorder as a result of his stressor events in service, not that different disorders are related to different in-service events. Therefore, the Board determines that the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD is rendered moot. Based on the above, the Board finds that the evidence is in relative equipoise. Thus, when resolving all doubt in the Veteran's favor, the Board finds that the Veteran has a current diagnosis of PTSD as a result of a verified in-service stressor. Accordingly, service connection for PTSD is granted. ORDER Entitlement to service connection for PTSD is granted. REMAND The Veteran also seeks entitlement to service connection for a respiratory disorder, to include asthma. On his June 1982 Report of Medical History at separation, the Veteran indicated that he did not smoke cigarettes but that his sleep area was "congested" with second-hand smoke which irritated his throat "causing a sore throat and sometimes a cough." The Veteran was provided with a VA examination in January 2012, at which time the examiner noted he was diagnosed as having asthma since 2005. The Veteran denied that he was a smoker although he complained of an "occasional cough" and throat irritation and indicated that his reported symptoms on separation were secondary to second hand smoke. The examiner emphasized that the Veteran had a normal chest X-ray upon separation from the military and that he did not complain of shortness of breath and dyspnea until more than 20 years following discharge from the military. Moreover, when the Veteran was evaluated in early 2005, his pulmonary function tests were normal without any evidence of obstructive or restrictive airway disease, although his primary care provider treated him for restrictive airway disease with an inhaler despite that. The examiner also noted that there was a decline in the Veteran's performance in his pulmonary function tests from 2005 to 2010, but that his tests were normal at the time of his initial complaint of shortness of breath in 2005. The examiner explained that she could not quantify the extent of the Veteran's exposure to secondhand smoke while on active duty, and that there was no evidence of COPD or restrictive airway disease related to his military service over twenty years later on evaluation. Therefore, the examiner indicated that she could not offer an opinion because such knowledge was not available in the medical literature, and any opinion would be speculation. When a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that speculative opinion is not legally sufficient to establish service connection). Before the Board can rely on an examiner's conclusion that an etiological opinion would be speculative, however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. Given the foregoing, the Board finds that, although the examiner provided an explanation for her alleged inability to provide a nexus opinion without resorting to speculation, it is not clear that she considered all procurable and assembled data when determining that an opinion could not be formed without speculation. In correspondence dated in July 2011, the Veteran indicated that he developed chronic bronchitis and asthma as a result of 11 years of in-service exposure to cigarette smoke, cleaning solvents, aerospace ground equipment on the flight line, lead, dust from unexploded and exploded munitions, asbestos, Agent Orange, and gasoline, and that over time this chronic bronchitis and asthma developed into lung disease. This suggests that the Veteran experienced respiratory symptomatology of some sort since service that gradually worsened over time. Although, as a layperson, the Veteran is not competent to diagnose conditions such as chronic bronchitis, asthma, and lung disease, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the Veteran is competent to report observable symptomatology such as breathing difficulties and shortness of breath. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, the January 2012 VA examination report failed to acknowledge and discuss the Veteran's competent statements of respiratory symptomatology since service, as well as his allegations of in-service exposure to various toxins. As such, the Board finds that this examination report is inadequate for VA purposes. See also 38 C.F.R. § 4.2. Specifically, it is not clear that the VA examiner considered all procurable and assembled data, such as the Veteran's lay statements regarding continuity of symptoms since service. Thus, on remand, the Veteran should be scheduled for an updated VA examination which addresses the probable etiology of his respiratory symptomatology without resorting to mere speculation. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA respiratory examination to determine the nature and probable etiology of any respiratory disorder present, to include asthma. The claims file should be provided to the examiner in conjunction with the examination. After a review of the record on appeal, an examination of the Veteran, and after conducting all necessary testing, the examiner should identify any current respiratory pathology and provide answers to the following question: As to each diagnosed respiratory disorder, whether it is at least as likely as not (50 percent probability or more) that it was incurred in or otherwise a result of his period of active duty service, to include alleged in-service exposure to cigarette smoke, cleaning solvents, aerospace ground equipment on the flight line, lead, dust from unexploded and exploded munitions, asbestos, Agent Orange, and gasoline. In providing answers to the above question, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. When offering an opinion, the examiner should consider the Veteran's lay statements of experiencing respiratory symptomatology since service. The examiner is advised that lay evidence of continuity of symptoms of a respiratory disability after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless, there still must be a factual showing that a symptom, for example shortness of breath, is derived from an injury, disease, or event in service. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Then readjudicate the issue on appeal. If any benefit sought is not granted, then issue a supplemental statement of the case and afford the Veteran and his representative a reasonable period in which to respond before returning the claims file 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs