Citation Nr: 1803286 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-28 670A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a neurocognitive disorder, and depression. 2. Entitlement to service connection for migraine headaches, to include as secondary to acquired psychiatric disorder and/or as due to exposure to contaminated water at Camp Lejeune. 3. Entitlement to service connection for a neurological disorder of the cervical spine, to include as secondary to acquired psychiatric disorder and/or as due to exposure to contaminated water at Camp Lejeune. 4. Entitlement to service connection for a stomach disorder, to include as secondary to acquired psychiatric disorder and/or as due to exposure to contaminated water at Camp Lejeune. 5. Entitlement to service connection for a gastrointestinal disorder, including gastroesophageal reflux disease (GERD), to include as secondary to acquired psychiatric disorder and/or as due to exposure to contaminated water at Camp Lejeune. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to August 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from January 2013, January 2015, and December 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. On multiple occasions, the Veteran requested a hearing before a Veteran Law Judge. In January 2017, however, he withdrew his request for a hearing before the Board. See 38 C.F.R. § 20.704(e) (2017). With regard to the characterization of the claim for an acquired psychiatric disorder, the Board notes that the agency of original jurisdiction (AOJ) characterized the Veteran's claims as entitlement to service connection for PTSD and entitlement to service connection for a neuropsychological disorder. However, in light of the medical evidence of record, the Board has recharacterized the claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, a neurocognitive disorder, and depression, so as to accurately reflect the evidence of record as well as to comport with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). With regard to the characterization of the claim for a gastrointestinal disorder, the AOJ characterized the issue as entitlement to service connection for GERD. However, the United States Court of Appeals for Veterans Claims (Court) has held that a claim includes all disabilities that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Therefore, the Board has recharacterized the issue on appeal more broadly as entitlement to service connection for a gastrointestinal disorder. Similarly, with regard to the characterization of the claim for a neurological disorder of the cervical spine, the AOJ characterized the issue as entitlement to service connection for twitching of the neck. Given the Veteran's reported symptoms and his treatment records, the Board has recharacterized the issue on appeal more broadly as entitlement to service connection for a neurological disorder of the cervical spine disorder. Id. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the decision. The remaining issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran has a current diagnosis of unspecified depressive disorder and mild neurocognitive disorder, and the evidence is in relative equipoise as to whether he has a current diagnosis of PTSD. 2. The competent medical evidence of record relates his PTSD and unspecified depressive disorder to his military service, including his combat related stressor and other verified stressor; and his mild neurocognitive disorder to his PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD, unspecified depressive disorder, and mild neurocognitive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.310, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts demonstrate that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing service, was aggravated therein. 38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the general requirements for service connection, establishing service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125. The Board notes that the DSM-5 recently replaced the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with the DSM-5. The provisions of the interim final rule only apply, however, to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014. Since the Veteran's claim was not certified to the Board until January 2017, the DSM-5 is applicable. The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether the Veteran engaged in combat with the enemy, as well as whether the claimed in-service stressor is related to such combat; or, if not, whether there is objective evidence to verify the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. at 147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also 38 U.S.C. 1154(b) (2014). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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 veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran claims entitlement to service connection for an acquired psychiatric disorder as a result of his military service. He has identified a number of service-related stressors, including his participation in combat operations during the Vietnam War, see October 2012 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD. Pertinent evidence of record includes the Veteran's service personnel records, VA treatment records, August 2012, December 2014, and June 2017 VA examination reports, a November 2013 Disability Benefits Questionnaire (DBQ) and accompanying letter completed by Dr. K.A., and his lay statements. Review of the Veteran's service personnel records, including his DD-214, confirm that his military occupational specialty (MOS) was motor vehicle operator, that he served in Vietnam, and that he was awarded a combat action ribbon for his participation in combat operations against armed insurgents in 1967 and 1968. In connection with his claim for service connection, the Veteran underwent three VA examinations in August 2012, December 2014, and June 2017. Each examiner, after reviewing the pertinent medical history and interviewing the Veteran, concluded that the Veteran did not meet the diagnostic criteria for an Axis I diagnosis under the DSM-IV or DSM-5. In support of his claim, the Veteran submitted a November 2013 DBQ and accompanying letter completed by Dr. K.A. In the DBQ, Dr. K.A. noted that he currently suffered from PTSD. In the accompanying letter, Dr. K.A. provided a detailed summary of the Veteran's military and mental health history. She noted the August 2012 VA examination, as well as VA treatment records showing impressions of and treatment for PTSD and depression. Following neurocognitive testing, Dr. K.A. concluded that he suffered from a mild neurocognitive disorder given his deficits of memory; however, she concluded that he did not meet the diagnostic criteria for a major neurocognitive disorder. Furthermore, Dr. K.A. concluded that the Veteran's personality testing and present self-report of psychological symptoms met the DSM-5 diagnostic criteria for PTSD. Dr. K.A. also noted that he presented with exposure to multiple traumatic event, and that he felt helpless and terrified by his military combat experiences. Concerning his credibility, Dr. K.A. noted that the Veteran appeared to put forth full and consistent attention, and was fully cooperative throughout the evaluation. Dr. K.A. concluded that the Veteran's mild neurocognitive disorder was related to psychiatric factors. Dr. K.A. also concluded that the event that presently bothered him the most was his military combat and war zone experiences. The Veteran's VA treatment records, including November 2016 and January 2017 VA Psychiatric Notes, document DSM-5 diagnoses of PTSD and an unspecified depressive disorder. Those VA Psychiatric Notes both document the Veteran's reported history, including his participation in combat operations during the Vietnam War, and conclude that the Veteran's chronic depressive symptoms and PTSD stemmed from his military service during the Vietnam War. Based upon the evidence of record, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD, unspecified depressive disorder, and mild neurocognitive disorder is warranted. Initially, as discussed above, the Veteran's VA treatment records and the November 2013 evaluation by Dr. K.A. indicate current diagnoses of PTSD, unspecified depressive disorder, and mild neurocognitive disorder. Significantly, the VA treatment records and the November 2013 evaluation by Dr. K.A. both indicate that each diagnosis was rendered in according to DSM-5. Therefore, the first element of service connection is met. Moreover, as noted above, the Veteran's service personnel records, including his DD-214, confirm that his MOS was motor vehicle operator, that he served in Vietnam, and that he was awarded a combat action ribbon for his participation in combat operations against armed insurgents in 1967 and 1968. As such, the Board finds that his reported combat-related stressors are consistent with the circumstances of his service and can be verified through his lay statements alone. See 38 U.S.C. § 1154 (2014); 38 C.F.R. § 3.304(f)(2). Finally, turning to the question of whether the Veteran's PTSD is related to his military service and whether his alcohol use disorder is related to his PTSD, the Board finds that the Veteran's VA treatment records, including the November 2016 and January 2017 VA Psychiatric Notes, and the November 2013 evaluation by Dr. K.A. provide competent and probative evidence in support of his claim. It is clear that the opinions provided were based upon a complete review of the pertinent evidence of record, including his pre-service, service, and post-service medical history, as well as his lay statements concerning his in-service experiences. Moreover, the opinions contained adequate rationale for the conclusion that his PTSD and unspecified depressive disorder is related to the military service, including his participation in combat operations, and that his mild neurocognitive disorder is secondary to his psychiatric disorders. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board assigns great probative value to this opinions. Moreover, there is no evidence of record that contradicts these opinions. After resolving all reasonable doubt in the Veteran's favor, the evidence supports a finding that his PTSD and unspecified depressive disorder is related to the military service, including his participation in combat operations, and that his mild neurocognitive disorder is secondary to his psychiatric disorders. Consequently, service connection for each diagnosis is warranted. ORDER Service connection for PTSD, unspecified depressive disorder, and mild neurocognitive disorder is granted. REMAND In May 2012, the Veteran filed a claim for service connection for migraine headaches, twitching in the neck, and a stomach disorder. In July 2012, he clarified that each of those disorders were secondary to his PTSD. See July 2012 Report of General Information. In a February 2013 statement, the Veteran indicated that he suffered from migraines, twitching in the neck, and a stomach disorder, since his discharge. In November 2016, he attributed his neck twitching, GERD, and headaches, to his combat service, as well as the contaminated water at Camp Lejeune. In this regard, the Board notes that the Veteran's military personnel records confirm that he was stationed at Camp Lejeune numerous times throughout his service. In connection with his claim, the Veteran underwent a VA examination in August 2012. With regard to his alleged stomach disorder, the examiner concluded that there were no specific diagnosis related to the Veteran's stomach. The examiner noted that the was an undiagnosed motion, repetitive, including the abdominal musculature, that was less likely than not proximately due to or the result of his PTSD. The examiner noted that there was no body of evidence suggesting that such motions were caused by PTSD. Further reference was made to the neurological examination. With regard to the Veteran's migraines, the examiner noted the diagnosis of migraines, including migraine variants, and tension headaches since the 1990s. Ultimately, the examiner concluded that the Veteran's migraines were less likely than not incurred in or caused by his military service. The examiner reasoned that migraine headaches were common and thought to be caused by neurologic inflammation, cortical spreading depression or activation of the trigeminovascular system. The examiner then stated that PTSD did not cause migraines. With regard to his reported twitching of the neck, the Veteran reported involuntary movements of the head and abdomen, and that they occurred multiple times a day. The examiner noted that the Veteran's description of his neck and abdominal movements did not fit the pattern of any known movement disorder and, while some of the movements were observed during the examination, they did not appear to be ticks or other movement disorder. As such a diagnosis could not be rendered at that time. Finally, the examiner concluded that the Veteran's claimed disorder was less likely than not incurred in or caused by his military service because no diagnosis could be rendered, and PTSD was not known to cause movement disorders. Initially, the Board finds that further examination is necessary to clarify whether the Veteran suffers from diagnosed disability related to his complaints of twitching of the neck and his stomach. In this regard, while the August 2012 examiner concluded that diagnoses could not be rendered at that time, the examiner nevertheless noted that the abnormal movements were observed during the examination in both the Veteran's abdomen and neck. Thus, it is unclear whether the examiner was unable to render a diagnosis due to a lack of knowledge, whether further testing was necessary, or whether the movements were a medical anomaly. Furthermore, with regard to the opinion provided, the examiners opined that the Veteran's stomach disorder, twitching of the neck, and migraines were not related to his now service-connected PTSD. However, the examiner failed to address whether such were aggravated by his service-connected PTSD. In this regard, an opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Thus, to ensure that an opinion is obtained that adequately considers the Veteran's lay statements and all theories of entitlement, he should once again be scheduled for new VA examination(s) by a different examiner. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (explaining that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). With regard to the Veteran's gastrointestinal disorder(s), the Board notes that he has not undergone an examination to address whether such is related to his military service or secondary to his now service-connected PTSD. The Board finds that, in light of his lay statements concerning his continuous symptoms since service and current diagnoses of record, VA's duty to afford the Veteran an examination has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) (2017) presents a low threshold for the requirement that evidence indicates a claim disability may be associated with military service for the purposes of a VA examination). On remand, the AOJ should also obtain any outstanding VA treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Veteran should be provided the opportunity to identify any private treatment records that are relevant to his claims, and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records. See 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's VA treatment records. 2. The Veteran should also be given an opportunity to identify any additional healthcare providers. After securing any necessary authorizations from him, obtain all identified treatment records. All reasonable attempts should be made to obtain any identified records. 3. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) (2014) and 38 C.F.R. § 3.159(e) (2017). 4. After completing the above development, the Veteran should be afforded a VA examination by a new examiner(s) to determine whether he currently suffers from any stomach disorder and/or neurological disorder of the cervical spine and, if so, whether such disorders, as well as any migraine disorder and gastrointestinal disorder, are related to his military service, to include his exposure to the contaminated water at Camp Lejeune, or is secondary to his now service-connected PTSD, unspecified depressive disorder, and mild neurocognitive disorder. The claims file, to include a copy of this Remand, must be made available to and review by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, to include the Veteran's VA treatment records, the examiner should offer an opinion as to the following questions: a) Clarify all diagnoses pertinent to the Veteran's alleged stomach disorder, neurological disorder of the cervical spine, migraines, and gastrointestinal disorder, including a discussion as to whether the Veteran suffers from any stomach disorder and/or neurological disorder of the cervical spine manifested by involuntary movements. b) With regard to any diagnosed disorder, is it at least as likely as not (a 50 percent or greater probability) that any such had its onset during, or is otherwise related to, his military service, to include his exposure to the contaminated water at Camp Lejeune; or c) If not, is it at least as likely as not (a 50 percent or higher probability) that such was caused by his service-connected PTSD, unspecified depressive disorder, and mild neurocognitive disorder; or d) If not, is it at least as likely as not (a 50 percent or higher probability) that such has been aggravated by his service-connected PTSD, unspecified depressive disorder, and mild neurocognitive disorder. If the examiner determines that there is aggravation, the examiner should state, to the best of their ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements, and the opinion and rationale must reflect such consideration. Furthermore, the examiner must address each question above, and all testing results, along with a complete, clearly-stated rational for any conclusion reached, must be provided. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the appeal should be returned to the Board for further appellate consideration, if otherwise in order. 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 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. §§ 5109B, 7112 (2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs