Citation Nr: 1802952 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-31 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Air Force from August 1970 to August 1973. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board notes that the appellant previously appeared at a hearing before the Board in February 2013. In June 2017, the appellant was notified by the Board that the Veterans Law Judge who conducted his hearing was no longer employed by the Board. The appellant waived a new hearing on his case and submitted a written statement which has been considered in this decision. This case was previously before the Board in April 2014 and July 2015. In April 2014, the Board remanded the claim for further development, to include obtaining medical records, undertaking development to corroborate the appellant's claimed stressors, and scheduling the appellant for a VA examination. The case was returned to the Board in July 2015 where it was again remanded for compliance with the April 2014 remand directives. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The appellant's diagnosed PTSD is the result of his verified in-service stressors. 2. The appellant's diagnosed MDD is the result of his PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD with MDD, are met. 38 U.S.C. §§1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistant Act of 2000 (VCAA) Neither the appellant nor his representative have raised any issues with the duty to notify or 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 may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. 3.303. In general, to establish service connection, a Veteran must show (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arizo v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between the veteran's present symptoms and an 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, 139 (1997). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b); see also 38 C.F.R. § 3.102. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis The appellant asserts that service connection is warranted for his current psychiatric disabilities of PTSD and MDD. The appellant contends that while he was stationed at McGuire Air Force Base (AFB), his duties included transporting the bodies of service members killed in action in Vietnam, by truck, to Dover AFB, Delaware, where they were prepared for burial. His duties at delivery included verifying with the staff at Dover that the correct body was in each casket and transporting the caskets to the areas of the base where the bodies were prepared for burial. In the course of these duties, the appellant reports that he had to actually enter the mortuary and freezer areas where he witnessed bodies being prepared for final internment. This process included embalming, reattaching limbs and sewing up wounds, and placing bodies in dress uniforms for transport to the families. After a review of the record, the Board finds that the evidence meets the criteria for service connection for PTSD. Regarding the first element of service connection for PTSD, the appellant submitted a statement from his treating physician that he had a diagnosis of PTSD in May 2008. This diagnosis has not been disputed in subsequent VA examinations or other private treatment records. The appellant has been hospitalized on multiple occasions for psychiatric episodes and has undergone both in-patient and outpatient treatment for PTSD. Thus, the Board finds the appellant has met the first element for service connection for PTSD. Regarding the second element of service connection for PTSD, a link established by medical evidence between the veteran's present symptoms and an in-service stressor, the record contains conflicting evidence. The appellant underwent two VA psychological examinations, one in January 2015, where a link was found between his PTSD and his active service, and one in July 2016, where a link was not found. The Board notes that both of these examinations were conducted under the DSM 5 instead of under the appropriate criteria of the DSM IV, which should have been used as the appellant's case had been certified to the Board prior to August 4, 2014. However, the Board finds there is no prejudice to the appellant in proceeding with adjudication of the appeal, given the fully favorable nature of the Board's decision. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the U.S. Court of Appeals for Veterans Claims (Court) held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide "important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence." Nieves-Rodriguez, 22 Vet. App. at 302. The first factor to be considered in determining probative value of a medical opinion is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second factor involves consideration of whether the medical expert provided a fully articulated opinion. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of a medical opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Regarding the January 2015 examination, the appellant was diagnosed with both PTSD and MDD, secondary to his PTSD. The examiner, a clinical psychologist, noted that she had reviewed the appellant's file and conducted an in-person examination with the appellant. The examiner found that the appellant's initial stressor was his receiving and transporting dead bodies of soldiers killed in Vietnam by truck from McGuire AFB to Dover AFB. The examiner found that this at least as likely as not met the criteria for a finding of PTSD; that the appellant directly experienced a traumatic event, and that he experience repeated or extreme exposure to aversive details of the traumatic event which caused a variety of symptoms. While the examiner did note the appellant's experiences as a police officer did contribute to his PTSD symptoms, these experiences were classified as an aggravation of the symptoms he experienced as a result of his in-service trauma. The appellant was also seen for a VA examination in July 2016. At that examination, the appellant was found to not meet the criteria for a PTSD diagnosis as related to an in-service stressor. The examiner found that, since the appellant's claimed stressor was not combat related, it did not meet the criteria for PTSD. The examiner stated in the rationale that handling dead bodies and visiting a mortuary where the remains of soldiers killed in Vietnam were being processed did not involve experiencing repeated or extreme exposure to aversive details of the traumatic events. The examiner concluded that the appellant's PTSD was more likely than not related to his experiences as a police officer. The Board finds, after considering both opinions, that the medical evidence of record is at least evenly balanced. Both opinions were provided by licensed medical professionals, qualified to diagnose and provide an opinion on the cause of a mental health disorder. Both opinions considered the appellant's case file, treatment records, and conducted a personal interview. Therefore, granting the appellant the benefit of the doubt, the Board finds that the appellant does have a link between his PTSD and an in-service stressor, mainly the transportation and receiving of the bodies of soldiers killed in Vietnam and that the second criterion for service connection of PTSD is met. 38 C.F.R. § 3.304 (f); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The record also contains conflicting evidence regarding the third element of service connection for PTSD, whether there is credible supporting evidence that the claimed in-service stressor actually occurred. Throughout the appellant's case, the RO has been unable to obtain evidence corroborating the reported stressor. Record searches by the Air Force were consistently returned with no affirmative evidence that bodies of deceased service members were routed through McGuire AFB on their way to Dover AFB. In order to corroborate his reported stressor, the appellant has submitted three buddy statements from other former service members who served during the Vietnam era In one of the statements, a former Army chaplain recalls conversations he had with personnel at Dover AFB about the process of bringing remains back from Vietnam, which included sometimes flying the remains to other local air bases, including McGuire AFB, and then transporting the caskets by truck to Dover AFB, based on what route would produce the fastest arrival time. In the second statement, a former Air Force sergeant offered another buddy statement, wherein he remembered planes coming into Royal AFB Mildenhall in England carrying bodies from Vietnam that were bound for McGuire AFB. These were bodies of service members who died while being treated in military hospitals in Germany. In the third statement, a former Air Force captain, whose duties included sealing the caskets of deceased service members killed in action in Vietnam and preparing the shipping paperwork from mortuary sites in the Philippines, submitted a statement indicating that the remains were shipped to McGuire AFB, where they were then sent along to other mortuary locations. Although Air Force records are silent as to whether service member remains were transported into the United States via McGuire AFB, the appellant has presented three statements that are consistent with each other, and with his own testimony. Moreover, the credibility of these buddy statements is further bolstered by the fact that they come from three unique and distinct sources: an Army chaplain who served in the United States, a sergeant who served in the United Kingdom, and an Air Force captain who served in the Philippines. Therefore, the Board finds that when considering all the evidence, and granting the appellant the benefit of the doubt, that the appellant's claimed stressor of handling the remains of service members killed in action in Vietnam to be sufficiently corroborated for purposes of establishing service connection. 38 C.F.R. § 3.304 (f); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board notes that in both VA medical opinions, provided in January 2015 and July 2016, the appellant is noted to have MDD. Both opinions concur that the symptoms of the appellant's PTSD and MDD cannot be differentiated. Further, they both conclude that the appellant's MDD is secondary to his PTSD. No evidence of record contradicts the appellant's diagnosis or the etiology of his MDD from the January 2015 and July 2016 VA examinations. The Board therefore finds that service connection for MDD as secondary to PTSD is warranted. 38 C.F.R. § 3.310(a) (service connection is warranted for disability that is the result of service connected disease). Given the evidence discussed above, the Board finds the record is sufficient to conclude that the appellant's current PTSD and MDD are causally linked with his active service, to include verified in-service stressors. Entitlement to service connection for PTSD with MDD is therefore warranted. ORDER Service connection for PTSD with MDD is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs