Citation Nr: 18140715 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 18-42 754 DATE: October 5, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a heart disability, to include hypertension is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for skin cancer of the ear is remanded. FINDING OF FACT The Veteran has an acquired psychiatric disorder including PTSD, depression, and insomnia, that is caused by the Veteran’s active service traumatic stressors. CONCLUSION OF LAW An acquired psychiatric disorder including PTSD was incurred in wartime service. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from November 1960 to November 1968, including service in the Republic of Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2015 and January 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. Jurisdiction is currently retained by the RO in Atlanta, Georgia. The Veteran filed a claim of service connection for PTSD, however the Court of Appeals for Veteran Claims has held that a claim for service connection for a psychiatric disorder encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the issue has been broadened and recharacterized as reflected on the title page. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to 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 duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing this disorder based on examination findings and in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5); 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. 38 C.F.R. §§ 3.304(f), 4.125(a). Diagnoses of PTSD by health care professionals are presumed to be in accordance with applicable governing medical criteria. See Cohen v. Brown, 10 Vet. App. 128, 139-40 (1997). If the evidence establishes that the 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. See 38 C.F.R. § 3.304(f)(2); see also 38 U.S.C. § 1154(b) (2012). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military activity, and a 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, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). “Fear of hostile military activity” is defined to mean 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. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends he is entitled to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran has consistently stated that his current symptoms are a result of in-service events while serving in the Republic of Vietnam. In correspondence dated October 2015, the Veteran stated that he was stationed at Tan Son Nhut Air Force Base in July 1965 to serve in Operation Two Buck. He stated that he saw wounded and deceased service members coming in from the front. The Veteran further reported that they were shot at daily from tree tops and that he witnessed the execution of civilians. Following his service in Vietnam, the Veteran stated that he experienced nightmares, problems with his marriage, and suicidal ideations. The Board accepts the Veteran’s reported stressors involving both combat and noncombat events in service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). In subsequent correspondence dated April 2016, the Veteran reported that he witnessed Vietnamese guards at the base’s main gate shoot civilians indiscriminately at civilians who did not have proper identification. The Veteran further reported that he saw a fellow service member get shot from the tree line at the edge of the runway where they slept. The evidence of record reflects that the Veteran’s wife submitted a letter dated April 2016 on behalf of the Veteran. She stated that the Veteran had nightmares, “bouts of anxiety and depression,” and substance abuse. The Veteran’s wife stated that the Veteran had seen wounded and deceased service members brought back from the front in Vietnam. She further reported that has a “very deep-rooted temper” and mood swings. The Board finds that the Veteran’s claimed stressors are consistent with the places, types, and circumstances of his service. The Veteran’s DD-214 lists the Veteran’s Military Occupational Specialty (MOS) was an airframe repairman. Furthermore, the Veteran’s military personnel records confirm that the Veteran served during Operation Two Buck in the country of Vietnam from July to August 1965 under a listed category of combat service. The evidence of record reflects that the Veteran underwent a private consultative evaluation in May 2016 for PTSD. Upon mental status examination, the private psychologist reported that the Veteran was administered the Minnesota Multiphasic Personality Inventory-2 (MMPI), that yielded a valid, high-stress profile. The private psychologist indicated that Scales L, 2, and D exceeded the 65-T parameter, which reportedly corroborated the Veteran’s reports of depressive symptoms, social discomfort, and anxiety. The report indicated that the private psychologist diagnosed the Veteran with PTSD with depressive features and episodic psychotic slippage. VA outpatient treatment records dated July 2016 indicate that the Veteran endorsed depression and nightmares for over 50 years since his return from Vietnam. The Veteran further endorsed difficulty coping and marital problems. He noted that he was unable to manage those memories. The Board notes that VA outpatient treatment records document diagnoses of PTSD, depression, and insomnia. The in-service stressors are consistent with the circumstances of the Veteran’s service in the Republic of Vietnam, and the Board finds that the Veteran’s currently diagnosed acquired psychiatric disorder including PTSD is caused by his in-service stressors. Entitlement to service connection for PTSD is therefore warranted under 38 C.F.R. § 3.304(f)(2). REASONS FOR REMAND The Veteran has not been scheduled for VA examinations for his bilateral knee disability, heart disability, GERD, or skin cancer claims. The Board finds that the evidence warrants such an examination, as well as additional development. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in-service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). At the outset, the Board notes that no service treatment records have been associated with the Veteran’s claims file. Post-service VA outpatient treatment records indicate that the Veteran has diagnoses of hypertension, arthritis, GERD, and osteoarthritis of the knees. Regarding the Veteran’s claimed heart disability, the Board notes that VA outpatient treatment records document a diagnosis of hypertension, as discussed above. While a December 2014 myocardial perfusion test was reportedly negative for ischemia and infarct, a December 2014 echocardiogram (ECG) that identified premature atrial complexes and a left bundle branch block. The ECG was assessed as abnormal. As the Veteran has documented service in the Republic of Vietnam, the Board finds that the Veteran is presumed to have designated agent herbicide exposure, to include Agent Orange. Concerning the Veteran’s bilateral knee disability, a December 2014 x-ray of the right knee showed a contusion injury to the right patella with underlying mild to moderate osteoarthritis. Subsequently, an April 2015 magnetic resonance imaging (MRI) scan of the right knee showed medial compartment and patellofemoral compartment osteoarthritis with a mild bone bruise, a medial meniscal tear, and moderate effusion. Regarding the Veteran’s skin cancer claim, the Board notes that a May 2015 dermatopathology report indicated that the Veteran had a diagnosis of basal cell carcinoma of the right superior helix. Thereafter, treatment notes dated July 2015 reference an April 2015 removal of skin cancer from the right ear. For the above reasons, the Board concludes that VA examinations for bilateral knee disability, heart disability, GERD, and skin cancer are necessary. There is credible evidence of current disabilities and reports by the Veteran in his original claim that they first onset in service, although service treatment records have not been obtained. The matters are REMANDED for the following action: 1. If there is outstanding evidence, the Veteran should be invited to submit such evidence, including statements regarding any claimed in-service events, injuries, or illnesses. The Board notes that in his Application for Compensation and Pension (VA Form 21-526), the Veteran indicated that his skin cancer began in 1969, GERD began in 1965, bilateral knee disability in 1968, and claimed heart disability in 2014. 2. Associate any service treatment records with the Veteran’s claims file from the active service period of November 1960 to November 1968. All efforts to obtain records should be documented, and if unavailable, a formal finding should be made. 3. After the above development has been accomplished, schedule the Veteran for VA examinations for his claimed bilateral knee disability, heart disability, GERD, and skin cancer. The claims file must be available to and reviewed by the examiners. After reviewing the claims file and examining the Veteran, the examiners should answer the following questions for each of the claimed disabilities: (a.) For each claim, does the Veteran have a current disability? (b.) For each claim, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s disabilities are caused or aggravated by any aspect of the Veteran’s active duty? (c.) For each claim, is it at least as likely as not (a 50 percent probability or greater) that the disabilities were caused by any service-connected disability? (d.) For each claim, is it at least as likely as not (a 50 percent probability or greater) that the disabilities were aggravated (ie., permanently worsened beyond the natural progress) by any service-connected disability? The availability of presumptive service connection for a disability based on chronic diseases or designated herbicide exposure, to include Agent Orange, does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). A detailed rationale for the opinion must be provided. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by any service-connected disability. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Any appropriate evaluations, studies and testing deemed necessary by the examiner should be conducted and their results included in the examination report. The underlying reasons for any opinions expressed must be included in the report. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Thereafter, readjudicate the issues on appeal. If the determinations remain unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel