Citation Nr: 18140738 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-29 651 DATE: October 5, 2018 ORDER New and material evidence has been submitted to reopen a claim for service connection for a posttraumatic stress disorder (PTSD) disability. Entitlement to service connection for PTSD is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for an acquired psychiatric disability to include PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The August 2009 rating decision that denied service connection for a PTSD disability on the basis that he did not have a current PTSD disability is final. 2. The evidence received since the August 2009 rating decision, including a September 2011 VA examination that provided a diagnosis of PTSD, is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 3. The Veteran has a current acquired psychiatric disorder, to include PTSD, as a result of his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the August 2009 denial, and the claim of entitlement to service connection for a PTSD disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to May 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and September 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Factual Background and Analysis The Veteran contends that he has PTSD as a result of his in-service traumatic experiences as he served in Vietnam. The Veteran underwent a VA examination in September 2011. The Veteran reported serving in the war zone during his time in Vietnam. He did not participate in direct combat but did carry a weapon. The Veteran reported that while in Vietnam, he felt that his life was threatened on many occasions. The examiner noted that the Veteran had a diagnosis of adjustment disorder with depressed mood and anxiety. The examiner concluded that the Veteran had a diagnosis of PTSD as well as an Axis I diagnosis of adjustment disorder with depressed mood and anxiety. The examiner indicated that the two diagnoses could be delineated from each other in regards to his symptoms of PTSD. With regard to PTSD, he experienced irritability, difficultly sleeping, recurrent recollection of events, efforts to avoid activities that arouse the event, diminished participation in activities, feelings of detachment from others and difficulty concentrating. For his adjustment disorder with depressed mood and anxiety, he experienced intermittent symptoms of depression and anxiety. The examiner indicated that the Axis I diagnosis meets the criteria for PTSD according to DSM-IV. The examiner also indicated that the Veteran’s claimed stressor was not related to his fear of hostile military or terroristic activity as he did not directly participate in fire fights with the enemy. Instead, he was fearful of incoming fire of the possibility that he could run into the enemy. A stressor was also the harassment that he and his wife received during his second deployment while living in Saigon. He reported that they were often verbally and physically harassed and even had guns pulled on them. There was a link between PTSD symptoms and his functional status and quality of life. He also had difficulty establishing and maintaining effective work and social relationships as a result of his mood impairment. The Veteran underwent a VA examination in November 2014. The examiner determined that the Veteran had a diagnosis of an other specified depressive disorder. The examiner also noted that the Veteran did not have more than one mental disorder diagnosed. The examiner noted that a May 2012 VA mental health noted provided an Axis I diagnosis of major depressive disorder. The examiner also found that while the Veteran had a claim for PTSD, he did not report a stressor that would meet criterion A. The examiner however concluded that the Veteran’s depressive disorder was at least as likely as not related to his experiences while in the military. The Veteran underwent a VA examination in July 2015. The examiner found that the Veteran had a diagnosis of PTSD that conformed to the DSM-5 criteria. The examiner also noted that the Veteran did not have more than one mental disorder diagnosed. It was not applicable to differentiate the symptoms attributable to each diagnosis as there was only one diagnosis. The examiner opined that it was less likely than not that the Veteran’s PTSD was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that the Veteran reported that his wife tried to kill him with a large kitchen knife which would qualify for a criteria A in making the PTSD diagnosis. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that service connection for PTSD is warranted. Initially, the Board notes that while there is some ambiguity over whether the Veteran has a current diagnosis of PTSD, when affording the Veteran the benefit of the doubt, the Board finds that the Veteran has a current diagnosis of PTSD. As noted above, both the September 2011 and July 2015 VA examiners have specifically indicated that the Veteran met the criteria for PTSD under both DSM-IV and DSM-5. Accordingly, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Notably, the September 2011 VA examiner concluded that the Veteran had a diagnosis of PTSD as well as an Axis I diagnosis of adjustment disorder with depressed mood and anxiety. The examiner also found that the Veteran met the criteria for PTSD as he was fearful of incoming fire of the possibility that he could run into the enemy while also experiencing harassment that he and his wife received during his second deployment while living in Saigon. The Board notes that the July 2015 VA examiner found that while the Veteran had PTSD, it was less likely than not that the Veteran’s PTSD was incurred in or caused by the claimed in-service event, injury or illness. However, in making this determination, the examiner did not specifically address the Veteran’s previously claimed stressors which resulted in the positive opinion of the September 2011 VA examiner. Again, the September 2011 VA examiner specifically indicated that the Veteran met the criteria for PTSD based on his stressors of being fearful of incoming fire of the possibility that he could run into the enemy while also experiencing harassment that he and his wife received. Accordingly, when affording the Veteran the benefit of the doubt, the Board finds that service connection for PTSD is warranted. The Board also notes that the December 2014 rating decision, the RO granted service connection for other specified depressive disorder at an initial 30 percent disability rating. The Board notes that the Court has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the Veteran has contended that all of his psychiatric symptomatology/impairment is related to his military service. Moreover, under the VA rating criteria all psychiatric disabilities other than eating disorders are evaluated under the general rating formula detailed at 38 C.F.R. § 4.130. The Veteran is not seeking service connection for an eating disorder. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Court has interpreted 38 U.S.C. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. In Esteban, the Court found that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions. Therefore, the practical effect of this appellate claim is whether all of the Veteran’s current psychiatric impairment is to be recognized as originating from his service-connected disability. Here, while the November 2014 VA examiner found that the Veteran did not have a PTSD diagnosis, he also found that that the Veteran’s psychiatric disorder is attributable to service. The Board feels that the distinctions drawn in the VA examiners’ reports as to the appropriate diagnosis in should not stand in the way of the Veteran receiving award of service connection for his service-related illness. Therefore, the Board concludes that the award of service connection for a psychiatric disorder should include PTSD. In short, for the reasons and bases set forth above, the Board finds that service connection for PTSD, is warranted. REASONS FOR REMAND Regarding the Veteran’s claim for an initial higher rating for an acquired psychiatric disability to include PTSD, the Board notes that the Veteran’s last examination for his PTSD disability took place in July 2015. However, subsequent treatment records indicate a possible worsening of his service-connected PTSD disability since his last VA examination in March 2015. As noted above, while the July 2015 VA examiner assessed the current severity of the Veteran’s psychiatric disorder, he also specifically found that the Veteran did not have more than one mental disorder (PTSD) diagnosed. However, the Board again notes that the Veteran was granted service connection for other specified depressive disorder while a VA psychiatry notation as recent as May 2018 provided a DSM-5 diagnosis of depressive disorder unspecified. Given that the Veteran appears to be receiving continued treatment for his acquired psychiatric disability to include PTSD disability and there appears to be a possible worsening of this disability, the Board finds that a new VA examination would be probative. Therefore, to ensure that the record reflects the current severity of the Veteran’s service-connected acquired psychiatric disability to include PTSD disability, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous”). Regarding the Veteran’s claim for a TDIU, the Board notes that further development and adjudication of the Veteran’s higher initial rating claim may provide evidence in support of his claim for TDIU. See, Henderson, supra; Harris, supra. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for a VA examination before appropriate physician(s) to determine the current level of severity of his service-connected acquired psychiatric disorder to include PTSD disability. The Veteran’s claims file and a copy of this remand must be provided to the examiner(s) for review in conjunction with this examination, and the examination report should reflect review of these items. All necessary tests and studies should be performed, and the examiner(s) should describe in detail all symptomatology associated with the Veteran’s acquired psychiatric disorder to include PTSD disability. The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected acquired psychiatric disorder to include PTSD disability on his ability to work. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel