Citation Nr: 1612750 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 12-14 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and nonspecified trauma or stressor-related disorder. 2. Entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus disability. REPRESENTATION Appellant represented by: Stephen Vaughn, Agent ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to January 1972. The Veteran also served in the Army National Guard from September 1976 to September 1983. This matter comes on appeal before the Board of Veterans' Appeals (Board) from August 2010 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. Since the most recent June 2015 statement of the case, the Veteran submitted additional evidence, without a waiver, which relates to the issue on appeal. As the Board is granting service connection, the Veteran is not prejudiced by the Board's review of the new evidence. In his substantive appeal regarding the claim for service connection for hypertension, the Veteran indicated that he wanted a hearing at the RO before a traveling Veterans Law Judge. In response, the Veteran was informed by letter that the hearing was scheduled in February 2016. The Veteran failed to report for the scheduled hearing. He also did not request a postponement and has provided no explanation for his failure to attend the hearing. Accordingly, the request for a hearing is deemed to have been withdrawn. 38 C.F.R. § 20.704(d) (2015). The issue of service connection for hypertension, to include as secondary to the service-connected diabetes mellitus disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has a psychiatric disorder, diagnosed as PTSD and nonspecified trauma or stressor-related disorder. 2. The Veteran's psychiatric disorders are, at least in part, etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and nonspecified trauma or stressor-related disorder have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The claim of service connection for an acquired psychiatric disorder has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of service connection), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). The Veteran's psychiatric disorders are not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2015); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). To establish service connection for PTSD the evidence must satisfy three basic elements. There must be 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). In July 2010 the regulations pertaining to service connection for PTSD were amended. Effective July 13, 2010, if a stressor claimed by a veteran is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)) and 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010). For purposes of this section, "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, . . . , 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). These revised regulations are applicable to the Veteran's claim. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Analysis for an Acquired Psychiatric Disorder The Veteran maintains that he has a psychiatric disorder as a result, at least in part, of his service in Vietnam. Initially, the Board finds that the Veteran has been diagnosed with PTSD and nonspecified trauma or stressor-related disorder. In a March 2014 VA examination report (in Virtual VA), the examiner diagnosed the Veteran with nonspecified trauma or stressor-related disorder. The examiner further stated that the Veteran did not meet the full criteria for PTSD. However, the Board notes that numerous VA treatment records show that the Veteran has been diagnosed with PTSD in accordance with the DSM criteria. See also September 2015 statement from Dr. Khan (noting that the Veteran has a diagnosis of PTSD). For these reasons, the Board finds that the Veteran has a psychiatric disorder, diagnosed as PTSD and nonspecified trauma or stressor-related disorder. Next, the Board finds that the Veteran's lay testimony sufficiently establishes the occurrence of the claimed in-service stressors as the March 2014 VA psychiatrist confirmed that the Veteran's claimed in-service stressors were adequate to support a diagnosis of PTSD. Specific stressors related to the Veteran's service were noted to include an incident during Vietnam when he and other soldiers were in a recreational compound when, all of a sudden, they found themselves surrounded by a large number of South Vietnamese soldiers. The Veteran and his fellow soldiers were unarmed as they had left their weapons outside the hooch. They were told that if they moved they would be shot. One of the Vietnamese soldiers pulled the pin out of a grenade. After two hours, the Veteran's company commander arrived and defused the situation. The March 2014 VA examiner stated that this stressor event was adequate to support a diagnosis of PTSD. During the March 2014 VA examination, the Veteran also reported that, upon arrival to Vietnam, he was in a convoy and heard the sound of enemy fire coming in his direction. The Veteran reported that he felt nervous and scared and thought "this is it." The March 2014 VA examiner stated that this stressor event was also adequate to support a diagnosis of PTSD. The March 2014 VA examiner diagnosed the Veteran with nonspecified trauma or stressor-related disorder. The examiner further noted that the Veteran did not meet the full criteria for PTSD; however, he did have significant emotional and behavioral difficulties that were "most likely related" to multiple traumatic experiences that he had encounter in his life. The examiner also stated that it was "more likely than not" that Vietnam experiences that involved a fear of hostile military activity were a "contributor" to his current symptoms, although it could not be said that they were the "sole or most significant cause." The Board finds that the March 2014 VA examiner's opinion is probative and weighs in favor of the Veteran's claim. The Board notes that there is no requirement that a veteran's service be the sole or most significant cause of a disability. In this case, the March 2014 VA examiner clearly stated that the Veteran's Vietnam experiences "more likely than not" contributed to his psychiatric disorder and associated symptoms. As such, the Board finds that this opinion is favorable to the Veteran's claim for service connection. The remaining evidence of record does not contain any contradictory opinions. As such, the Board finds that the criteria for service connection for a nonspecified trauma or stressor-related disorder is warranted. Further, although the March 2014 VA examiner did not find that the Veteran met the full criteria for a PTSD diagnosis, numerous VA treatment records show diagnoses of PTSD. Further, in a September 2015 statement, Dr. Khan noted that the Veteran had been under his care since August 2012. It was noted that the Veteran suffered from PTSD which was chronic and of moderate severity. As the evidence shows that the Veteran has a current PTSD diagnosis, and because the March 2014 VA examiner opined that the Veteran's in-service stressors were adequate to support a diagnosis of PTSD, the Board finds that service connection for PTSD is also warranted. For these reasons, the Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's currently diagnosed psychiatric disorders are related to service. Accordingly, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD and nonspecified trauma or stressor-related disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and nonspecified trauma or stressor-related disorder, is granted. REMAND Service Connection Analysis for Hypertension The Veteran contends that his hypertension is related to his service-connected diabetes mellitus disability. See Veteran's statement dated in October 2010. The Veteran was initially denied service connection for hypertension in an August 2010 rating decision. The Veteran filed a notice of disagreement in October 2010. The RO issued a statement of the case in May 2012, and the Veteran submitted a timely substantive appeal in May 2012. Thereafter, in February 2013, the Veteran was afforded a VA examination to assist in determining whether his currently diagnosed hypertension was caused or aggravated by the service-connected diabetes disability. The RO failed to issue a supplemental statement of the case after the February 2013 VA examination and instead issued a rating decision continuing the denial of service connection for hypertension. See 38 C.F.R. § 19.31 (2015) (a Supplemental Statement of the Case will be furnished to the Veteran when additional pertinent evidence is received after a Statement of the Case has been issued). As such, the Board finds that the case must be remanded so that supplemental statement of the case can be issued which considers all of the recent evidence, including the February 2013 VA examination report. Accordingly, the case is REMANDED for the following action: Issue a supplemental statement of the case with respect to the issue of service connection for hypertension, to include as secondary to the service-connected diabetes disability. An appropriate amount of time should be provided for a response. Thereafter, the case should be returned to the Board for further consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs