Citation Nr: 1805980 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-34 229A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a psychiatric disorder to include post traumatic stress disorder (PTSD). 2. Entitlement to service connection for headaches, claimed as due to exposure to herbicides and contaminated water and as secondary to a psychiatric disorder. REPRESENTATION Appellant represented by: Steven Berniker, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1961 to January 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2013 and March 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In February 2017, the Veteran testified during a Board hearing by videoconference. In October 2017, this matter was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The issue of service connection for headaches, claimed as due to exposure to herbicides and contaminated water is REMANDED to the AOJ. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran has verified periods of active service at Camp Lejeune from July 1961 to June 1963 resulting in his presumed exposure to contaminated water at Camp Lejeune. 2. There is a current diagnosis of PTSD in accordance with the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 5th ed., and it is as likely as not that the diagnosis of PTSD is due to a verified stressor event. 3. The evidence of record makes it less likely than not that the Veteran has a current psychiatric disorder other than PTSD. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 2. The criteria for service connection for a psychiatric disorder other than PTSD are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In light of the grant of service connection for PTSD, any further discussion of VA's duties to notify and assist is not warranted. 2. Service Connection Legal Criteria Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted 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 requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. Benzene, vinyl chloride (VC), and other VOCs were also found to be contaminating the water-supply systems. Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. These diseases are: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. In 2012, Congress passed the Honoring America's Veterans and Caring for Camp Lejeune Families Act (P.L. 112-154) (Act). The Act provides health benefits for qualifying veterans and their families who have contracted any of the 15 conditions listed in the 2009 NRC Report, including neurobehavioral effects. 38 C.F.R. §§ 3.307 and 3.309 were amended to provide presumptive service connection for 8 diseases associated with contaminants present in the water supply at Camp Lejeune from August 1, 1953, to December 31, 1987. See 82 Fed. Reg. 4173 (January 13, 2017). This amendment applies to claims received by VA on or after March 14, 2017, and claims pending before VA on that date. These diseases include adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of 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, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f) (2017). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154 (b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99. 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 PTSD 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. 38 C.F.R. § 3.304 (f)(3) (2017). In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). 38 C.F.R. § 4.125 requires PTSD diagnoses to conform to DSM-IV as the governing criteria for diagnosing PTSD. VA implemented DSM-5 effective August 4, 2014 and DSM-5 applies to claims certified to the Board on or after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). In this case, the RO certified the Veteran's appeal to the Board in January 2017 and therefore, DSM-5 is the governing directive. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. 3. Analysis The Veteran asserts that he has PTSD due to exposure to contaminated drinking water while stationed at Camp Lejeune. See the September 2015 PTSD stressor statement. The Board finds that affording the Veteran the benefit of doubt, the evidence shows that it is as likely as not that the Veteran has a current diagnosis of PTSD due to a verified stressor event. The Board notes that the Veteran does not contend and the weight of the evidence does not establish that the Veteran engaged in combat with the enemy. The evidence shows that the Veteran is a non-combat veteran, and there is credible evidence to support the Veteran's assertion that the stressful event occurred. As noted above, the Veteran has verified periods of active service at Camp Lejeune from July 1961 to June 1963 resulting in his presumed exposure to contaminated water at Camp Lejeune. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with VOCs. The Board finds that it is as likely as not that the evidence corroborates the Veteran's stressor event of using and drinking contaminated water at Camp Lejeune. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). The Board finds the above evidence to be sufficiently corroborative of the Veteran's claimed in-service stressor event and the Board finds that the stressor element required for a finding of service connection for PTSD has been met. 38 C.F.R. § 3.304 (f). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran's diagnosis of PTSD is caused by the verified in-service stressor event. The Veteran was afforded a VA psychiatric examination in November 2017 to obtain medical evidence as to the Veteran's current DSM diagnoses and evidence as to whether the Veteran's current psychiatric diagnoses were related to active service. The VA examiner, a psychologist, stated that the stressor event involving being exposed to contaminated water at Camp Lejeune met the criteria for Criterion A for PTSD under DSM-5 and was adequate to support a diagnosis of PTSD. The VA examiner opined that the Veteran had a diagnosis of PTSD in accordance with DSM 5. Although the Board finds it interesting that an event of which the Veteran was unaware for decades, and which involved the normal bodily function of drinking water (albeit contaminated) can nevertheless constitute a trauma that results in PTSD, the sufficiency of the stressor is a medical determination, and the examiner concluded that the act of drinking contaminated water is a stressor event that was sufficient to cause PTSD in the Veteran. See Cohen v. Brown, 10 Vet. App. 128 (1997). The Board notes that the psychologist was rather sparing in her rationale of any detail. Nevertheless, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board finds that the weight of the competent and credible evidence shows that the Veteran's current Axis I diagnosis is PTSD and he does not have a psychiatric disorder other than PTSD. The November 2017 VA examination report indicates that the only psychiatric disorder is PTSD. The Board finds that the November 2017 VA medical opinion to have great evidentiary weight in this case. The VA examiner considered the Veteran's medical history and reviewed the claims folder in providing the requested medical opinion. Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner has the skill and expertise to render these medical opinions. In evaluating the probative value of medical statements, the Board examines factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer; supra. The preponderance of the evidence establishes that the Veteran does not have a current psychiatric diagnosis in addition to the PTSD. Accordingly, on this record, service connection for a psychiatric disorder other than PTSD is not warranted and the claim is denied. ORDER Service connection for PTSD is granted. Service connection for a psychiatric disability other than PTSD is denied. REMAND The claim for service connection for headaches was remanded in October 2017 because the Board found this claim to be inextricably intertwined with the claim for a service connection for a psychiatric disorder to include PTSD since headaches may be a symptoms of a psychiatric disorder. Adjudication of the headaches claim was deferred pending resolution of the psychiatric disorder claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). In light of the grant of service connection for PTSD and the denial of service connection for a psychiatric disorder other than PTSD, the claim for service connection for headaches as secondary to PTSD should be adjudicated. The Board finds that due process mandates that this issue be remanded to the AOJ for adjudication in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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.) Adjudicate the claim for service connection for headaches to include as secondary to the service-connected PTSD and as due to exposure to contaminated water at Camp Lejeune. If the benefit on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. 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. §§ 5109B, 7112 (West 2012). ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs