Citation Nr: 1636688 Decision Date: 09/20/16 Archive Date: 09/27/16 DOCKET NO. 12-17 725A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a heart condition, to include as secondary to service connected asbestos pulmonary disease. 4. Entitlement to service connection for hypertension, to include as secondary to service connected asbestos pulmonary disease. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to service connected asbestos pulmonary disease. 6. Entitlement to service connection for an acquired psychiatric disability, claimed as entitlement to service connection for posttraumatic stress disorder (PTSD). 7. Entitlement to a disability evaluation in excess of 10 percent for service connected asbestos pulmonary disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, Spouse, and T.H. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1968 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at an April 2016 Travel Board hearing, and a transcript of this hearing is of record. The issues of entitlement to service connection for a bilateral foot disability, a bilateral knee disability, a heart disability, hypertension, and erectile dysfunction, as well as entitlement to a higher disability evaluation for asbestos pulmonary disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has a diagnosis of PTSD related to his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2015). Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2013). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a) (2015). 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). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, VA has recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the veteran must have experienced, witnessed, or have been confronted by 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 must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. In this case, the Veteran claims that he developed PTSD related to a fire that occurred during his time aboard the USS Yosemite. It has been corroborated that a fire on board the USS Yosemite did occur in January 1969, during the time the Veteran was assigned to this vessel. The Veteran testified that he and his friend Larry fought the fire together. He further reported that Larry later committed suicide, which the Veteran appeared to attribute to PTSD related to the fire. In July 2012, a VA examiner concluded that the Veteran does not meet the DSM-IV criteria for PTSD. The examiner diagnosed the Veteran with major depressive disorder, which he attributed to bereavement, complicated by chronic pain and difficulty adjusting to retirement. However, VA outpatient treatment records show that the Veteran has been diagnosed with PTSD related to his military service by his treating psychiatrist, Dr. K.T.. Thus there is evidence both for and against the Veteran's claim. Having reviewed the record, it seems clear to the Board that the Veteran's active service is by no means the only or even primary cause of his psychiatric problems. The Veteran has suffered the loss of a number of close family members and friends, is in poor health, and struggling financially. Nevertheless, having weighed the medical evidence, as well as credible lay evidence from both the Veteran's and his spouse, the Board finds that it is at least in equipoise whether the Veteran suffers from PTSD related to his active military service. Accordingly, the Veteran is afforded the benefit of the doubt and entitlement to service connection for PTSD is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2015). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2015). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for PTSD is granted. REMAND Service Connection The Veteran is seeking entitlement to service connection for a bilateral foot disability, a bilateral knee disability, a heart condition, hypertension, and erectile dysfunction. As an initial matter, the Board notes that VA treatment records show that the Veteran received disability benefits from the Social Security Administration (SSA). No clear determination as to the availability of any records which may have been in the possession of the SSA has been made. The Court has indicated that medical records upon which an award of Social Security disability benefits has been predicated are relevant to VA claims for service connection. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the RO should attempt to obtain any available SSA records, including any medical records the Veteran submitted in support of his claim. See Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002) (possibility that SSA records could contain relevant evidence cannot be foreclosed absent a review of those records). Additionally, there are no VA outpatient treatment records more recent than July 2012 of record. On remand, all VA outpatient treatment records received since that date should be associated with the Veteran's claims folder. Regarding the Veteran's claim for a bilateral foot disability, the Veteran has been diagnosed with a number of foot conditions, including gout. The Veteran's private physician, Dr. J.B., has treated the Veteran for gouty arthritis affecting his feet and noted in July 2007 that some of the Veteran's medications could be increasing his uric acid level and aggravating his gout. It is unclear to the Board which of the Veteran's medications concerned Dr. J.B. or whether the Veteran is still taking them; however, it does not appear that a medical opinion has been obtained to address whether medications prescribed for the Veteran's service connected disabilities have permanently aggravated his gouty arthritis. Regarding the Veteran's claim for erectile dysfunction, at his personal hearing, the Veteran suggested that his erectile dysfunction is caused or aggravated by his medications, including the medications he takes for his service connected asbestos pulmonary disease. While October 2010 and July 2012 VA examinations addressed whether the Veteran's erectile dysfunction is secondary to his asbestos pulmonary disease, there was no discussion of whether any of the medications prescribed to treat this service connected disability could cause or permanently aggravate the Veteran's erectile dysfunction. Accordingly, on remand, an addendum medical opinion should be obtained to address this theory of entitlement. Increased Rating The Veteran is also seeking entitlement to a higher disability evaluation for his service connected asbestos pulmonary disease. The Veteran was last afforded a VA examination of this disability in July 2012, more than four years ago, and he testified at his hearing that his condition has worsened since that time. Where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). An examination too remote for rating purposes cannot be considered "contemporaneous." See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Additionally, VA generally has a duty to provide additional examination when, as here, the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination. VAOPGCPREC 11-95 (Apr. 7, 1995). Accordingly, on remand, the Veteran should be scheduled for a new VA examination of his asbestos pulmonary disease, to include a pulmonary function test. Accordingly, the case is REMANDED for the following action: 1. Associate all VA outpatient treatment records from July 2012 with the Veteran's claims folder. 2. Attempt to obtain any available SSA records, including any medical records the Veteran submitted in support of his claim. These attempts should be documented and if no records can be located, a formal finding of unavailability should be associated with the Veteran's claims folder. 3. Once this is done, the RO should refer the Veteran's claims file to a VA physician to render the following medical opinion: The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that medications prescribed to treat the Veteran's service connected asbestos pulmonary disease and PTSD either singly or in combination caused or permanently aggravated the Veteran's a) erectile dysfunction or b) gouty arthritis. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 4. The RO should also schedule the Veteran for a VA examination of his service connected respiratory condition, to include pulmonary function testing. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 5. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should 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 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). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs