Citation Nr: 1746961 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 16-00 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1954 to June 1957. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The U.S. Court of Appeals for Veterans Claims (Court) has held that claims for service connection for a mental health disability encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Therefore, the claim of service connection for PTSD, has been recharacterized as service connection for an acquired psychiatric disability, to include PTSD. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for vertigo is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's PTSD is related to an in-service stressor. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). With respect to the second element, if the evidence shows that the veteran did not serve in combat with enemy forces during service, if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, or if a stressor claimed by a veteran is not related to the veteran's fear of hostile military or terrorist activity, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). In addition, 38 C.F.R. 3.304(f)(3) (2016) states: 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. The Veteran wrote in April 2013 that while serving on the U.S.S. Baltimore, there were three nights in a row off of the coast of Korea when the ship was constantly firing its guns. He also wrote that while in the Formosa Strait, his unit was attacked and the Chinese shot down a plane. The Veteran was involved in recovering bodies and with the autopsies. In October 2013, the Veteran wrote that while serving on the U.S.S. Lexington, the Chinese shot down an American plane and he helped recover the bodies. Service personnel records show that the Veteran served on the U.S.S. Baltimore from July 1955 to January 1956 and on the U.S.S. Lexington from February 1956 to February 1957. The Board finds that the Veteran's stressors are related to hostile military activity and were consistent with the place and circumstances of his service. Therefore, although the service personnel records do not show that the Veteran served in combat, the stressors do not need to be verified. See 38 C.F.R. 3.304(f)(3). VA psychiatric treatment records beginning in May 2013 show a diagnosis of depressive disorder, not otherwise specified, and probable PTSD/rule out PTSD. The Veteran was diagnosed with PTSD at a July 2013 VA examination based on the stressor of recovering bodies from the plane that was shot down. The bodies were partially eaten by sharks and had a stench at the time of recovery. The examiner noted that the Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury and that his response involved intense fear, helplessness, or horror. The Veteran had recurrent and distressing recollections, recurrent distressing dreams, intense psychological distress and reactivity at exposure to internal or external cues related to the traumatic event. He persistently avoided stimuli associated with the trauma. Persistent symptoms included difficulty falling or staying asleep, difficulty concentrating, hypervigilance, exaggerated startle response, depressed mood, anxiety, chronic sleep impairment, suspiciousness, suicidal ideation, impaired impulse control, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. The Board finds that service connection is warranted for PTSD. The Veteran has been diagnosed with PTSD as required under 38 C.F.R. § 4.125, there is medical evidence of a causal nexus between current symptomatology and the claimed in-service stressor, and the stressor was due to a fear of hostile military activity and was consistent with the circumstances of service. See 38 C.F.R. § 3.304(f). ORDER Service connection for an acquired psychiatric disability, to include PTSD, is granted. REMAND The Veteran is seeking service connection for vertigo. He had a VA examination in July 2013. The only diagnosis was tinnitus, for which service connection is already in effect. The examiner did not diagnose the Veteran with vertigo, did not consider relevant diagnoses and symptomatology from treatment, and noted that the claims file was not reviewed. VA treatment records beginning in July 2010 show complaints of dizziness. At October 2012 VA treatment, it was noted that the Veteran had balance, dizziness, and inner ear problems. At March 2013 VA treatment, it was noted that the Veteran had vertigo and dizziness. Treatment records beginning in May 2013 indicate that the Veteran took meclizine three times a day as needed for dizziness. The VA examiner did not consider the Veteran's reports of dizziness or his use of meclizine. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr, 21 Vet. App. at 311. Therefore, the Veteran must be scheduled for another VA examination for vertigo. VA treatment records to September 2013 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from September 2013 to the present while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain VA treatment records from September 2013 to the present. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of his vertigo or other disability related to dizziness. The reviewer must be given full access to the Veteran's complete VA claims file. The reviewer must specifically note on the report whether the Veteran's VA claims file was reviewed in connection with this examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that vertigo or any other diagnosed disability due to dizziness are related to service. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The reviewer must include in the medical report the rationale for any conclusions expressed, to include descriptions of the medical processes involved and citation to relevant medical literature/treatise as necessary. A report containing unsupported/unexplained conclusions will be returned as inadequate. If the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 3. After completing the above, readjudicate the claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ______________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs