Citation Nr: 1745708	
Decision Date: 10/13/17    Archive Date: 10/19/17

DOCKET NO.  12-27 998	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for a skin condition on the hands, to include dermatitis, to include as due to herbicide exposure.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. Jones, Associate Counsel




INTRODUCTION

The Veteran had active service from October 1967 to May 1969. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and September 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 

This appeal was before the Board in February 2016 at which time it was remanded to schedule the Veteran for a Board hearing and to obtain outstanding treatment records.  Additional VA medical records have been associated with the claims file.  In correspondence received in July 2016, the Veteran indicated that he did not want to appear for a Board hearing.  In light of the foregoing, the Board determines that the request for a hearing has been withdrawn.  Thus, the Board will proceed with consideration of the appeal based on the evidence of record.  38 C.F.R. § 20.704(e) (2016).  The Board finds that the Agency of Original Jurisdiction (AOJ) has complied with all remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

The issue of entitlement to service connection for a skin condition on the hands is addressed in the REMAND portion of the decision below and is REMANDED to AOJ.


FINDING OF FACT

The Veteran has been diagnosed with PTSD due to his experiences in Korea, including fear of hostile military activity consistent with the circumstances of his service. 



CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(3) (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Applicable Law

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131. 

To establish service connection the evidence must show: (1) a present disability; 
(2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of 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 generally requires:  (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressors occurred.  38 C.F.R. § 3.304 (f); Anglin v. West, 11 Vet. App. 361, 367 (1998).

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 posttraumatic stress disorder 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). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).


Factual Background 

The Veteran contends that service connection is warranted for an acquired psychiatric disorder.  Specifically, in an October 2009 statement, the Veteran indicated that while stationed in Korea, he was assigned to an artillery unit.  He stated that the sounds or blasts from the guns caused him to have "nervous problems, shell shock, and a sleep disorder."  See October 2009 Statement in Support of Claim for PTSD.  In a subsequent statement, the Veteran indicated that the condition is due to witnessing a Korean solider drive off a cliff.  See April 2012 Statement in Support of Claim for PTSD.

Military personnel records reflect that the Veteran was stationed in Korea during active service.  His military occupational specialties were gunner and cannoneer.  

The Veteran underwent a VA examination in July 2009 at which time PTSD was diagnosed.  The examiner noted that the Veteran's military history included service in Korea.  He noted that the Veteran was involved more in training exercises and firing very large weapons like machine guns and cannons than he was in actual combat, although the Veteran indicated that he felt like he was in combat in the way that it was staged.  The Veteran reported that it was very stressful for him because they used live ammunition, but there was no direct combat.  However, the examiner indicated that the Veteran was clearly traumatized by firing guns.  The examiner determined that the Veteran's PTSD symptoms clearly came from his experiences in Korea.  

In statements from the Veteran's siblings received in July 2011, they indicated that the Veteran was "not the same" after discharge from military service.  They reported that he experienced symptoms such nightmares and difficulty sleeping following separation from active duty.

The Veteran was provided an additional VA examination in July 2011.  The examiner diagnosed PTSD with secondary depression, secondary polysubstance abuse and attempt to self-medicate his symptoms of PTSD.  The examiner opined that it is at least as likely as not that the Veteran's claimed conditions are the result of his fear of hostile military or terrorist activity related to the incidents during the Veteran's service in Korea.  In this regard, the examiner explained that the Veteran clearly feared for his own well-being and safety.  Further, he has developed significant symptoms of PTSD that have interfered with his daily functioning, including being unable to work, having significant problems in his interpersonal relationships, and a long history of self-medicating with alcohol and drugs.   

In a June 2012 response from the Defense Personnel Records Information Retrieval System (DPRIS), it was reported that a review of the history of the calendar year of 1968 for the 4th Battalion, 76 Artillery and the period of January 1, 1969 to March 31, 1969 for the Eighth US Army Chronology did not provide any information pertaining to the death of a Korean soldier.  However, it was noted that incidents/casualties that involve non U.S. military personnel are not normally recorded in Official Military Documents.

In a July 2012 memorandum, the Joint Services Records Research Center (JSRRC) indicated that there was no documentation to confirm the stressor regarding the Veteran witnessing a Korean soldier driving a truck over a cliff.  


Analysis

After reviewing the evidence, and resolving doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, is warranted.   

The Veteran has a current diagnosis of PTSD, thus, the first element of service connection is satisfied.

The Board acknowledges that the Veteran's stressor of witnessing a Korean solider drive off a cliff could not be verified.  Nevertheless, the Veteran identified additional stressors related to fear of hostile military activity, which the Board finds are generally consistent with the circumstances of his service.  Moreover, he described stressors related to firing machine guns and cannons which, although not in combat, produced fear for his life given its staging and the use of live ammunition.  The Board finds that the Veteran is competent to report the incidents he experienced during service, and there is no evidence of record to indicate that the statements are false.  The Board also finds the Veteran credible and notes that his description of this in-service stressor is consistent with his military occupational specialties of gunner and cannonier.  Therefore, the Veteran's lay statements as to the in-service stressors are sufficient to establish the second element of service connection.

The remaining question to be addressed is whether the Veteran's diagnosed PTSD is related to the corroborated stressors he reported or to his fear of hostile military activity.  In this regard, the July 2009 VA examiner indicated that the appellant's PTSD symptoms clearly come from his experiences in Korea.  Additionally, the July 2011 VA examiner indicated that the Veteran's PTSD is due to fear of hostile military activity in Korea.  It is well established that the adequacy of a stressor, sufficiency of symptomatology, and diagnosis are all medical determinations.  Cohen v. Brown, 10 Vet. App. 128, 143-44 (1997).  There are no other medical opinions of record to contradict their findings.  

As set forth above, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence.  In other words, the preponderance of the evidence must be against the claim for the benefit to be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  Given the evidence set forth above, such a conclusion cannot be made in this case.  Under these circumstances, the record is sufficient to award service connection for an acquired psychiatric disorder, to include PTSD.  


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted.


REMAND

The Veteran asserts that service connection is warranted for a skin condition on the hands.  A VA examination was provided in July 2009.  The examiner diagnosed dermatitis of the hands, but did not provide an etiological opinion.  Under these circumstances, the medical opinion is inadequate and a remand is necessary.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007)

Accordingly, the case is REMANDED for the following action:

1.  Obtain an addendum opinion from a suitably qualified VA examiner regarding the nature and etiology of the Veteran's skin condition on the hands.  Access to records in the Veteran's electronic Virtual VA and VBMS files should be made available to the examiner for review in connection with his or her opinion.  

The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's skin condition on the hands was incurred in service or is otherwise causally related to his active service or any incident therein?

A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative.

In rendering an opinion, the examiner must discuss the Veteran's lay statements regarding the onset of the claimed condition.

2.  After undertaking any development deemed necessary, readjudicate the issue on appeal, considering all the evidence of record.  If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and the opportunity to respond.  The case should then be returned to the Board for further appellate review.

The Veteran 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).




______________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs