Citation Nr: 1610510 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 04-43 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an increased rating for hiatal hernia, rated 10 percent prior to November 12, 2004 and 30 percent from November 12, 2004. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran had active service from June 1966 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated July 2004 and December 2004 of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Augusta, Maine and New York, New York, which denied the issues on appeal. Jurisdiction of the case lies with the RO in New York, New York. The July 2004 rating decision denied service connection for PTSD and denied a rating in excess of 10 percent for service-connected hiatal hernia. The December 2004 rating decision denied the Veteran's claim for entitlement to a TDIU. Subsequently, by a December 2006 rating decision, the RO increased the rating for hiatal hernia from 10 percent to 30 percent effective November 12, 2004. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). As such, the issue on appeal has been recharacterized as listed on the title page of this decision. On VA Form 9, received by the RO in December 2004, the Veteran requested a hearing before a Veterans Law Judge at the local RO. The Veteran was scheduled for a Travel Board hearing in August 2007 but did not appear for the hearing. In a July 2007 statement, he requested rescheduling of the hearing. However, in November 2014, the Veteran withdrew his hearing request. A request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. 38 C.F.R. § 20.702(e) (2015). In view of the foregoing, the Board considers the Veteran's hearing request withdrawn and will proceed to adjudicate the appeal. Id. The issues of entitlement to an increased rating for hiatal hernia, rated 10 percent prior to November 12, 2004 and 30 percent from November 12, 2004, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The medical evidence of record shows a diagnosis of PTSD based on a claimed in-service stressor. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Given the favorable disposition of the action here, 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 PTSD. 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 a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). 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. Otherwise, the law requires verification of a claimed stressor. The provisions of 38 C.F.R. § 3.304(f)(3) are limited to stressors arising from hostile military or terrorist acts toward the U.S. military committed by individuals or entities, rather than acts of one service member directed at another service member. Hostile criminal actions, such as the harassment and personal assault stressors alleged by a Veteran are contemplated under the provisions of § 3.304(f)(5), which addresses evidentiary considerations where PTSD is alleged to have resulted from an in-service personal assault. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The Veteran claims PTSD based on in-service trauma based on his experience with the riots in Washington, D.C. while stationed in Arlington, Virginia from June 1966 to June 1968. He has reported that he was assigned to the Separation and Retirement unit Room 4228 and was in charge of the mail room. However, when the April 1968 D.C. riot broke out, federal troops were activated to bring the city to order, and he was put on guard duty. He stated that he helped stop the riots and arrest protestors with the police and assisted the police in taking the injured to the hospital. He witnessed fires, burning of the American flag and draft cards, sit-downs and marches. He has also reported that this memory was brought back when the attacks on the World Trade Center happened on September 11, 2001 (9/11), at which time he was working only two blocks away from the twin towers. He witnessed the planes hitting the towers, the towers collapsing, and people jumping out of the buildings. He describes that he experiences nightmares and flashbacks related to both stressors. Initially, the Board finds that the medical evidence of record shows a current diagnosis of PTSD. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In this regard, May 2003 and April 2004 VA examiners only noted a diagnosis of anxiety disorder, NOS. The April 2004 VA examiner also stated that because the Veteran had been diagnosed with a number of psychiatric disorders, including personality disorder, not otherwise specified (NOS) by a VA psychologist, the MMPI-2 was administered; however, the results of the test were equivocal, since the Veteran was noted to have responded in an exaggerated and inconsistent manner. The examiner stated that the results were generally consistent with a diagnosis of severe personality disorder or borderline psychosis. However, the record includes numerous diagnoses of PTSD made by the Veteran's private and VA psychiatric health providers. To that effect, private treatment records from Dr. Douglas Marcus reflect that the Veteran had been treated for depression at least from February 1998 and his depression has gotten worse since 9/11. A July 2003 treatment record notes a diagnosis of PTSD and panic attacks. Private treatment records from South Nassau Community Hospital Counseling Center show that the Veteran attended PTSD group sessions from January 2004 to April 2004. He reported serving in Washington D.C. during the riot during his active duty service in the Marine Corps. Further, VA treatment records dated from December 2003 consistently show diagnoses of anxiety disorder, NOS, and PTSD. During a May 2004 VA treatment session, the Veteran reported that he was stationed in Washington, D.C. during the riots and draft burning times and anti-war movement. He was also there for the Martin Luther King march. He also witnessed the 9/11 events firsthand and the fire reminded him of experiences he had during the D.C. riots, where he feared for his life. A May 2004 physician's questionnaire indicates that the physician, who was the primary care provider regarding the Veteran's psychiatric condition, has treated the Veteran since October 2003 and reviewed his psychiatric treatment records. The physician opined that the Veteran had severe PTSD involving intrusive thoughts of war and flashbacks of war. Furthermore, the Board finds that there is credible supporting evidence that the claimed in-service stressor actually occurred. A review of the Veteran's service treatment records does not reflect that he reported or was treated for any psychiatric symptoms. However, they reflect that the Veteran was in fact stationed in U.S. Navy Department, Arlington Annex, in Washington, D.C. Additionally, a former service member who served with the Veteran in the same unit submitted a statement in support of the Veteran's claim in June 2008. He reported that he was stationed with the Veteran at Henderson Hall, Arlington, Virginia and served at the U.S. Marine Corps Navy-Annex Headquarters in Washington, D.C. The Veteran worked in the Separation and Retirement Room and they both served on guard duty and as riot patrols during the D.C. riot where fires, looting, sit-downs, demonstrations and marches took place. The Board notes that the Veteran is competent to report the circumstances of his service because they are based on his own direct observations. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of her personal knowledge). Moreover, the Board finds these statements to be credible, as the Veteran has reported a consistent history of the in-service stressor in describing the stressor throughout the period on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the Veteran's demeanor when testifying at a hearing). Similarly, the June 2008 lay statement from his fellow Marine is both competent and credible. As noted above, there is little contemporaneous evidence available to verify the Veteran's stressor. However, the Board finds that the medical opinions referencing the D.C. riot stressor for the Veteran's PTSD diagnosis are persuasive as to the existence of the Veteran's stressor. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."). The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Notably, a November 2006 private neuropsychological evaluation report noted a diagnosis of PTSD based on a comprehensive clinical evaluation. The Veteran reported a psychological history including a diagnosis of PTSD related to Vietnam era and 9/11 tragedy in New York City. The psychologist opined that a diagnosis of PTSD certainly appeared accurate and explained his psychological presentations. Additionally, during a May 2003 VA mental disorders examination, the Veteran complained of intense anxiety, approaching panic and recurrent periods of deep depressive symptoms, difficulty falling and staying asleep and nightmares two times per week. He stated that he was a Vietnam era Veteran but he never served overseas. He was stationed in Washington D.C. during the riots of the mid to late 1960s and he stated he found these memories troubling and painful, and those scenes inhabited his nightmares. The examiner stated that the Veteran's anxiety and depression became severe years following his service and had been especially problematic since witnessing the events of 09/11 firsthand. The examiner opined that "it is as likely as not that [the Veteran's] current mental problems have a substrate from his years in the marines and represent a worsening of his service-connected condition." In sum, the Board finds that the evidence of record is at least in relative equipoise. That is, there is at least an approximate balance of evidence both for and against the actual occurrence of the in-service stressor. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Because a diagnosis of PTSD based on an in-service stressor has been offered, and because competent and credible supporting evidence that the in-service stressor occurred has been offered, service connection for PTSD is warranted. ORDER Entitlement to service connection for PTSD is granted. REMAND VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Veteran last underwent a VA examination in November 2006 in conjunction with his claim for increased disability rating for service-connected hiatal hernia. Clinical findings of those examinations are now over 9 years old, and adjudicating this claim on the evidence then of record without obtaining an updated examination would be error. Thus, an additional VA examination is required to provide a current picture of the Veteran's service-connected disability, which concerns the issue currently on appeal. 38 C.F.R. §§ 3.326, 3.327 (2015). The Board also finds that the issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to an increased rating for service-connected hiatal hernia. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claim for an increased rating has not yet been adjudicated, the Board cannot adjudicate the claim for a TDIU and it must be remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records for the Veteran from the VA Medical Center in Northport, New York, and all associated outpatient clinics, dated from September 2012 to the present. All attempts to obtain those records should be documented in the claims file. 2. Thereafter, schedule the Veteran for an appropriate VA examination to ascertain the current severity of the Veteran's service-connected hiatal hernia. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted, including a thorough examination of the Veteran's hiatal hernia. All pertinent symptomatology and findings must be reported in detail. The examiner should comment on the absence or presence of the following: persistently recurrent epigastric distress; dysphagia, pyrosis; regurgitation; substernal or arm or shoulder pain; considerable impairment of health; vomiting; material weight loss; hematemesis or melena, with moderate anemia; the presence or absence of constipation, diarrhea, abdominal distress, and pain, as well as other disturbances in bowel function associated with gastrointestinal disability, and to describe any health impairment to include whether it is mild, moderate, or severe. A complete rationale for any opinion offered should be provided. 3. Thereafter, schedule the Veteran for a VA examination by an appropriate medical practitioner to obtain a medical opinion regarding the impact of the Veteran's service-connected disabilities on his employability. A copy of this Remand and the entire claims file must be made available to and reviewed by the VA examiner. Based on a review of the claims file, the examiner must provide an opinion as to whether it is at least as likely not (greater than 50 percent probability) that the Veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, due solely to service-connected disabilities, considered in combination. In this regard, the examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. When offering this opinion, the examiner should not consider the effects of age or any non-service connected disabilities. 4. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). 5. After completing the above, readjudicate all issues on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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