Citation Nr: 18151109 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-08 943 DATE: November 16, 2018 ORDER Entitlement for service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD) and depression, is granted. REMANDED Entitlement for service connection for chronic obstructive pulmonary disease (COPD)/emphysema is remanded. FINDING OF FACT The criteria for service connection for an acquired psychiatric disability, including PTSD and depression has been met. 38 U.S.C. §1110, 5107; 38 C.F.R. §3.303 (2017). CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, including PTSD and depression, have been met. 38 U.S.C. §1110, 5107; 38 C.F.R. §3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter originally came before the Board of Veteran’s Appeals (Board) on appeal from April 2013 and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing in September 2016. In March 2017, the Board granted the Veteran’s motion to correct the transcript, and the Board considered the transcript in conjunction with corrections. The transcript of the hearing, with changes, has been associated with the electronic claims file. In November 2017, the Board denied service connection for an acquired psychiatric disorder and COPD. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court or CAVC), and on Joint Motion for Partial Remand in June 2018, vacated the Board’s November 2017 decision to the extent that it denied service connection for an acquired psychiatric disorder, to include PTSD and depression, and COPD, and remanded those issues for readjudication. In order to find service connection for PTSD, the Veteran must have a medical diagnosis conforming to the requirements of section 38 C.F.R. §4.125(a). In this case, the Veteran has a current diagnosis of PTSD, pursuant to Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5). The Veteran’s current diagnosis of posttraumatic stress disorder included an extensive list of symptoms endorsing the PTSD and the examiner opined that “all current and recent mental health symptoms are most likely attributable to his diagnosis of PTSD…” (2/11/2016 CAPRI, p. 18-21). Additionally, to establish service connection of PTSD, an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in-service must be identified. In this case, the Veteran has provided a December 2014 written statement detailing the stressors encountered during his active duty service: a soldier run over by a tank and another soldier being struck and killed in a motor pool with equipment (12/31/2014 VA 21-4138 Statement ln Support of Claim, p. 1). During the hearing, the Veteran testified that “we witnessed this guy getting run over by a tank” and “a guy was fixing a truck tire. The O ring flew off, hit him in the head and killed him” (Hearing Testimony, p. 3). The Veteran’s witness, M.V., provided a written statement (1/24/2017 Buddy/Lay Statement, p. 1) corroborating the Veteran’s account of the stressors: “we encountered an accident where a guard was directing the traffic was killed by a tank which [the Veteran and] myself [M. V.] witness” and “a soldier was killed in the motor pool, hit in the head with an O Ring from breaking down a truck tire.” The witness appeared at the Veteran’s hearing, providing sworn testimony consistent with his written statement (9/9/2016 Hearing Testimony, p. 12). The Veteran and his friend are competent to provide evidence of these in-service stressors, as outlined above. 38 C.F.R. §3.159 (a). Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The corroboration of the in-service stressors provided by the Veteran’s witness, M. V., provides sufficient credibility and weight to establish that the in-service stressors occurred. Medical evidence connecting the current disability to the stressor is required to establish service connection of PTSD. In this case, the examination report identifies stressor 1, “witnessing a fellow soldier fatally run over by a tank,” and stressor 2, “witnessing a fellow soldier fatally struck by equipment” as the stressors that contributed to the Veteran’s PTSD diagnosis (2/11/2016 CAPRI, p. 20). The forgoing taken together meets the requirements outlined at 38 C.F.R. §3.304(f) for service connection of PTSD; therefore, the Veteran’s appeal for service connection of PTSD is granted. REASONS FOR REMAND Entitlement for service connection of COPD/emphysema is remanded. The Veteran has a current diagnosis for COPD. Although the record includes a medical opinion that COPD is less likely than not causally related to service (6/8/2017 C&P Exam, p. 11) and eliminates diesel exhaust as a possible cause of COPD, the opinion continues, “Veteran’s history of 42 pack years smoking history is a much greater risk factor.” The Board notes that secondary service connection has been asserted by the Veteran (9/12/2018 Appellate Brief p. 2), and in his hearing testimony, he stated that his “way of coping [with in-service stressors] was with drinking which led to smoking cigarettes also.” The Board cannot make a fully-informed decision on the issue of secondary service connection because no VA examiner has opined whether the Veteran’s COPD is secondarily related to any of the Veteran’s service connected disabilities, including but not limited, to his herein service connected PTSD. Accordingly, the matter is REMANDED for the following action: Obtain a VA examination by a qualified VA examiner or examiners for the purpose of determining whether the smoking that has been identified as the cause of the Veteran’s COPD was a result of his service connected PTSD. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s smoking habit, in whole or part, was a symptom or manifestation of his PTSD. If the smoking history is deemed partially attributable to PTSD, the examiner should estimate the percentage of such smoking that would not have occurred if not for the PTSD. In such case, it should then be stated whether it is at least as likely as not that the portion of smoking attributable to PTSD, in and of itself, would have caused or aggravated the COPD. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. The examiner should explain the reasons for any opinion offered. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature submitted by him. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. Eric Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. A. Myers, Associate Counsel