Citation Nr: 1600248 Decision Date: 01/05/16 Archive Date: 01/12/16 DOCKET NO. 08-09 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. 2. Entitlement to service connection for a disability manifested by acid reflux. 3. Entitlement to an increased rating for the service-connected residuals of abdominal trauma, evaluated as noncompensably disabling prior to September 23, 2009 and 10 percent disabling thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran had active, honorable service from December 1982 to June 1987. While he subsequently served on active duty from June 1987 to April 1996, due to the character of his discharge from this period of service, he is not eligible to receive benefits stemming from this period of service. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a rating decision issued in July 2011, the RO increased the Veteran's evaluation for his service-connected abdominal trauma residuals to 10 percent, effective September 23, 2009. In January 2014, the Veteran appeared at a hearing before the undersigned. In August 2014, the Board adjudicated a claim to reopen service connection for a left knee disability and several claims seeking higher rating for the Veteran's service-connected scars, and also remanded the claims captioned above for further development. After completion of the requested development, the RO readjudicated the Veteran's claims seeking a higher rating for abdominal trauma residuals and service connection for a disability manifested by acid reflux, but not his claim seeking service connection for a psychiatric disorder, to include PTSD. However, as the development completed with regard to this service connection claim provides a basis for granting the benefit sought, a remand to allow initial RO adjudication of the new evidence procured as a result of the remand directives is not required. As further development with regard to the Veteran's claims seeking service connection for a disability manifested by acid reflux and a higher rating for residuals of abdominal trauma is required, those claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A probative VA medical opinion links a current diagnosis of PTSD to the Veteran's corroborated stressors stemming from his period of active, honorable service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Claim The Veteran asserts that he experienced two seminal experiences during service which greatly affected his psychiatric state, namely his in-service motor vehicle accident (the many residuals of which are service-connected) and the collision of two ships in approximately 1986, namely the U.S.S. Jason, on which he served, and the U.S.S. Willamette. He posits that the catastrophic results of the collision of these two ships, during which he witnessed the death of a service member, Chief Hernandez, and feared for his own safety due to the structural instability of his ship and his immersion in highly flammable jet fuel, contributed to his current psychiatric disorder. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To establish entitlement to service connection for PTSD a veteran must provide: (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2015). Further, the credible supporting evidence that the claimed in-service stressor occurred may be established through credible lay testimony, alone, if the in-service stressor involves fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3) (2015). The Veteran's reported PTSD stressor of his involvement of an in-service motor vehicle accident is corroborated by his service treatment records, which document his extensive treatment for the injuries he sustained during this accident. As to the Veteran's reported PTSD stressor of witnessing the collision of two Naval vessels and the resulting death of a service member, pursuant to the Board's remand directives, the RO requested that the repository of Naval records research this event. As a result of this research, the Veteran's reports were corroborated by entries in Naval vessel log books, which document both the collision during the Veteran's service aboard one of the vessels and the death of a service member, albeit with a different, although similar, surname. Thereafter, the Veteran was afforded a VA psychiatric examination in August 2015, during which the VA examiner, a VA psychologist, diagnosed the Veteran with PTSD and opined that it is at least as likely as not that the Veteran's PTSD resulted from his two service-related stressors, namely his involvement in a motor vehicle accident and a Naval ship collision. The examiner cited the timeline of the Veteran's PTSD symptom onset and the focus of the Veteran's psychiatric ideation when determining this nexus to service. Based on the evidence of a current diagnosis of PTSD that has been affirmatively linked to the Veteran's corroborated in-service stressors, and the lack of any medical evidence against the claim, the Board concludes that service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND With regard to the Veteran's claim seeking a higher rating for the residuals of his abdominal trauma, the Veteran's representative recently asserted that the Veteran's disability has increased in severity since he was last afforded a related VA examination and requested that the Veteran be afforded a new examination to assess the current severity of his abdominal disability. Given this assertion of an increase in disability, a new examination is required. With regard to the Veteran's claim seeking service connection for a disability manifested by acid reflux, which has been diagnosed as gastroesophageal reflux disease (GERD), the Veteran's representative asserts that the Veteran's GERD is aggravated by his service-connected abdominal trauma residuals. As it is certainly conceivable that the Veteran's service-connected gastrointestinal disorder could affect his nonservice-connected gastrointestinal disorder, a related VA opinion should be obtained. Further, as the August 2015 VA medical opinion stating that the Veteran's GERD is not directly related to service cites findings from the Veteran's period of dishonorable service in support thereof and fails to consider the Veteran's assertions of onset during and continuity since service, a new opinion considering this relevant lay evidence and data from his period of honorable service must be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the Veteran's recent, outstanding VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from April 2014 to the present. 2. Then, schedule the Veteran for a VA gastrointestinal examination to determine: (1) the current severity of his service-connected abdominal trauma residuals, (2) the effect of this disability on his nonservice-connected GERD, and (3) the potential relationship between the Veteran's GERD and service. After eliciting a history of the Veteran's abdominal trauma residuals symptoms (to include bowel obstructions), the examiner is to conduct a relevant clinical examination and describe all residuals of the Veteran's in-service abdominal trauma. With regard to the Veteran's peritoneal adhesions resulting from his in-service abdominal trauma, the examiner is to characterize them as mild, moderate, moderately severe, or severe, as these terms are defined in Diagnostic Code 7301. The examiner is also to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently-diagnosed GERD had its onset in or is otherwise related to the Veteran's period of active, honorable service, which spans from December 1982 to June 1987. When rendering this opinion, the examiner must consider the Veteran's report of initially experiencing acid reflux in 1985 when convalescing from abdominal and other injuries sustained in a motor vehicle accident, and his report of experiencing recurrent episodes of acid reflux since that time. The examiner is also to opine whether it is at least as likely as not that the Veteran's currently-diagnosed GERD is caused or aggravated by his service-connected abdominal trauma residuals. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation of the Veteran's GERD by his service-connected abdominal trauma residuals is found, the examiner is to identify the baseline level of severity of the GERD prior to the superimposed aggravation. 3. Then, readjudicate the Veteran's claims seeking service connection for GERD and higher ratings for his service-connected abdominal trauma residuals. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs