Citation Nr: 1751323	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  14-03 495	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 

2. Entitlement to service connection for an acquired psychiatric disability, to include depression, and to include as due to service-connected pseudofolliculitis barbae.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran & Veteran's Mother


ATTORNEY FOR THE BOARD

G. Morales, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from March 2000 to August 2001 and from April 2003 to February 2007. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified before the undersigned at a March 2017 videoconference; a transcript of that hearing is of record.

Regarding representation, the Board notes that a VA Form 21-22, signed by the Veteran in August 2015 (received by VA the next month) in favor of The American Legion (TAL).  The Board notes that this form was noted acknowledged/signed by TAL.  However, a representative from TAL appeared at the above hearing and representative the Veteran.  In light of this affirmative action, the Board accepts that TAL is the Veteran's representative. 

The issue of service connection for depression is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The competent and credible evidence shows that the Veteran currently has PTSD as a result of enduring enemy mortar attacks while serving in Iraq. 


CONCLUSION OF LAW

The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Claims for service connection for PTSD require a medical diagnosis conforming to the requirements of § 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f); see 38 C.F.R. § 4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). 

However, 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.  38 C.F.R. § 3.304(f)(3) (2017).  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).

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).  

When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

After review of the record, the Board finds that the criteria for service connection for PTSD have been met. See 38 C.F.R. § 3.303. 

First, the Board finds that the record contains a diagnosis of PTSD provided by a competent mental health professional, a VA clinical psychologist. See CAPRI (LCM), Nov. 28, 2014 & Feb. 4, 2015, Mental Health Notes at p. 11-12, 149-50. 

The Veteran asserts that she has PTSD from mortar attacks that her convoy and barracks suffered during her service in Iraq. In written statements, and testimony at the March 2017 Board hearing, she detailed a trip from Kuwait to Iraq. During the trip, there was a mortar attack on the convoy, which resulted in the death of several convoy members. See March 2017 Board Hearing at 3. Additionally, she testified that there were near daily mortar attacks on her barracks in Balad, Iraq, and that she was living in fear on a daily basis. Id. at 3-4. The Board finds the Veteran's testimony to be competent and credible. Based on the credible lay statements, the Board finds that the Veteran feared hostile military or terrorist activity, and as such, her statements establish the occurrence of the in-service stressor. See 38 C.F.R. § 3.304(f)(3); see also DD Form 214 (indicating 3 years of foreign service, to include service in Operation Iraqi Freedom and designation for serving in imminent danger pay area).

As the Veteran has a diagnosis of PTSD from a VA psychologist and she has testified that while serving in Iraq she was in fear for her life, service connection for PTSD is warranted. 

ORDER

Service connection for PTSD is granted.


REMAND

The Board finds that additional development is needed before the Veteran's remaining issue on appeal can be decided. In part, the relevant July 2010 VA examination reflect a diagnosis of depressive disorder, but it did not address whether the Veteran's depression was aggravated by her pseudofolliculitis barbae. 

In the July 2010 VA examination, the examiner explained that it was less likely than not that the Veteran's depression was secondary to her service-connected disability. The examiner opined that as her condition was fairly well managed at the time that other factors likely contributed to her depression. However, the examiner did not opine as to whether the Veteran's depression was aggravated by her service-connected disability. See July 2010 VA Examination; see also 38 C.F.R. § 3.310(b); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (finding that a secondary opinion which addresses a causal relationship, but which does not address the question of aggravation, is inadequate).

Therefore, the Board finds that a new medical opinion is required to determine if the Veteran's service-connected disability of pseudofolliculitis barbae aggravates the Veteran's depression. 

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for a VA examination, with an examiner who has not previously examined her, to determine the current level of impairment resulting from PTSD. The examiner must review the claims file and must note that review in the report. The examiner should respond to the following:

a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's depression is either (1) caused or (2) aggravated by her now service-connected PTSD. The examiner should specifically address the Veteran's treatment records that suggest PTSD and depression are related. 

b) If the Veteran's depression is not connected to the now service-connected PTSD, differentiate between the symptoms caused by her service-connected PTSD and depression and explain why. 

c) If the Veteran's depression is not connected to her service-connected PTSD, address whether the depression is at least as likely as not (1) caused or (2) aggravated by her service-connected pseudofolliculitis barbae.

A comprehensive rational for all opinions expressed is to be provided.

2. Then, readjudicate the issue on appeal. If unfavorable to the Veteran, then issue a supplemental statement of the case, allow appropriate time for response, and return the case to the Board. 

The appellant 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).



______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs